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A treating physician may provide testimony under Kendra’s law on a petition for an order to force a patient to submit to assisted outpatient treatment, a Queens Supreme Court justice in New York has ruled in a case of first impression. In a holding that could make it easier for psychiatric health care providers to seek treatment orders for their patients, Justice Nathan L. Berke said that physician-patient privilege did not prevent the doctor from disclosing facts about the patient in a Kendra’s law hearing. While confidential communications could not be divulged, facts about the patient’s condition could conceivably be revealed in court, Berke said. In Matter of Sullivan, 500202/2000, the court ruled that not all information that a treating physician may have about a patient is privileged. “The protection of the physician-patient privilege extends only to communications and not to facts,” Berke wrote. “A fact is one thing and a communication concerning that fact is an entirely different thing.” The patient, Nathan R., is seeking summary judgment dismissing a petition to place him in assisted outpatient treatment under Mental Hygiene Law �9.60, known as “Kendra’s Law,” passed last year in the wake of a case in which a 32-year-old woman was pushed from a New York subway platform to her death by a schizophrenic man who apparently was not taking medication that would have controlled his disease. Nathan R.’s condition was not discussed in Berke’s opinion. The petition was filed by the director of the Department of Psychiatry at the Elmhurst Hospital Center. Scheduled to testify was Dr. Shoundra Zeng, who is Nathan R.’s treating physician. Zeng is also the physician who examined Nathan R. to evaluate him for the assisted outpatient treatment program. Lawyers for Nathan R. said that a physician treating a patient with mental illness could not provide testimony in the Kendra’s Law case, since she would necessarily divulge facts learned during treatment. CPLR DEFINES PRIVILEGE The New York Civil Procedure Law Rules, which set the scope of the doctor-patient privilege in New York courts, do not prevent treating physicians from disclosing information about their patients, Berke said. “It only prevents a physician from disclosing information which is deemed confidential,” he wrote. Privileged communications are those which, among other things, are acquired by the doctor while attending the patient, and necessary to enable the doctor to treat or prescribe drugs for the patient. Specifically, Berke said, there was no prohibition in Kendra’s law from a treating physician such as Zeng from serving as the examining physician under the Mental Hygiene Law. Berke said that the respondent, Nathan R., had the burden of proving that any portion of the doctor’s testimony was privileged and that that had not been accomplished. CONFIDENTIALITY HEARING But instead of immediately approving Zeng’s testimony, the judge said that the patient would get the opportunity to show that the doctor’s testimony would breach doctor-patient privilege. A hearing has been set for tomorrow morning in Berke’s part. Assistant Corporation Counsel Dina Mastellone handled the case for the petitioners seeking to order the patient to undergo outpatient treatment. Israel Flamenbaum, of State of New York Mental Hygiene Legal Services in Mineola, represented Nathan R., as did Dennis Feld, also of Mental Hygiene Legal Services.

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