2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d 799 (1956)
On March 14, 1955, at about 3:30 p.m., defendant Emil A. Decina was driving his car alone in a northerly direction on Delaware Avenue in Buffalo when the vehicle swerved left across the center line and then sharply right, mounting the easterly curb at high speed.1
The car struck six schoolgirls walking on the sidewalk.2 Three children aged 6 to 12 were killed on the scene and a fourth child died two days later in the hospital from injuries sustained in the accident.3 After the collision, the car continued, struck a lamppost, and crashed through a brick wall into a grocery store, where Decina was found stooped over the wheel appearing dazed.4
Decina was taken to E. J. Meyer Memorial Hospital at 5:30 p.m.5 A pink slip from the Buffalo Police Department accompanied him, requesting examination and noting the fatal accident and the recommendation of the District Attorney.6 There, Dr. Wechter, a resident physician, spoke with Decina in the presence of a police guard and obtained his medical history of epilepsy, including prior treatment, operations, seizures, and medication.7
Decina was indicted for violating section 1053-a of the Penal Law.8 Following conviction after his demurrer was overruled, the Appellate Division reversed on the law and granted a new trial on the ground that the transactions with Dr. Wechter were privileged, while sustaining the overruling of the demurrer.9 Both the People and the defendant appealed.10
Whether the indictment charges a crime under section 1053-a of the Penal Law?11
Section 1053-a of the Penal Law makes it a crime for a person to operate or drive any vehicle in a reckless or culpably negligent manner whereby a human being is killed.12 Culpable negligence is conduct that manifests a disregard of the consequences which may ensue from the act and indifference to the rights of others.13 A defendant who knows he is subject to epileptic attacks that may strike at any time engages in culpable negligence when he consciously chooses to drive a motor vehicle alone on a public highway without anyone accompanying him.14 An attack that occurs causing death completes the crime.
Yes. The established facts show that Decina knew of his epileptic condition from prior treatment and seizures yet consciously drove alone on March 14, 1955, when the vehicle struck and killed the four children.15 The indictment alleges precisely this knowing undertaking to operate the vehicle followed by the attack that caused the reckless path and deaths.16 Decina's awareness of the risk and deliberate choice to drive matches the statutory requirement of disregard for consequences that may ensue.17
The indictment charges a crime under section 1053-a of the Penal Law.18
Related opinions on this issue
Joined by Fuld And Van Voorhis, Jj.
Justice Desmond concurs in part and dissents in part.19 He agrees that the judgment of conviction cannot stand but argues the indictment alleges no crime and should be dismissed.20 The statute requires operation of the vehicle in a culpably negligent manner, which connotes consciousness and volition.21
The indictment shows the reckless travel was caused by loss of consciousness, making the assertions contradictory.22 No prior case had applied the statute to such blackout situations.23 The new construction would criminalize driving by anyone with numerous diseases and other conditions of a human being which make it possible or even likely that the afflicted person will lose control of his automobile. This violates due process by creating an indefinite and overbroad prohibition.
Whether a physician-patient relationship existed between Dr. Wechter and defendant such that the communications were privileged under section 352 of the Civil Practice Act?24
Section 352 of the Civil Practice Act provides that a physician shall not disclose any information acquired in attending a patient in a professional capacity which was necessary to enable him to act in that capacity.25 A physician-patient relationship arises when the physician examines or takes a history from the patient as part of his duties, even if not the treating physician personally, and the information is necessary for diagnosis or treatment.26 The privilege applies to medical history of epilepsy and prior treatment.27
Yes. The established facts indicate that Decina arrived at the hospital with a pink slip requesting examination and Dr. Wechter, acting as a resident physician in the course of his routine hospital duties, obtained the full medical history of epilepsy, operations, seizures, and medication before diagnosing Jacksonian epilepsy.28 Although Dr. Wechter did not personally administer treatment, other staff members did treat Decina for the condition and the history was necessary for proper diagnosis.29 These circumstances establish the professional relationship and bring the communications within the protection of section 352.30
A physician-patient relationship existed and the communications were privileged.31
Whether the presence of the police guard in or near the hospital room destroyed the physician-patient privilege?32
The physician-patient privilege under section 352 of the Civil Practice Act is not destroyed by the presence of a third person such as a police guard if, under all the surrounding circumstances, the communication was intended to be confidential.33 The test focuses on whether the occasion for the third person's presence indicates the communication was meant to remain confidential, and precedent holds the privilege applies even when third persons are present.34
No. The established facts show that Dr. Wechter obtained the medical history from Decina while a police guard stood in the doorway or just outside the room pursuant to district attorney orders.35 The communication occurred during a standard professional medical encounter in the hospital and nothing in the circumstances suggests Decina intended the statements to be anything other than confidential.36 Authority construing section 352 confirms that the mere presence of such a third person does not remove the privilege.37
The presence of the police guard did not destroy the physician-patient privilege.38