Limits of Doctor-Patient Privilege
- January 14, 2014
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The defendant in State v. Marcano was charged with uttering a forged instrument (N.J.S.A. 2C:21-1(a)(3)), attempting to obtain a controlled dangerous substance (CDS) by fraud (N.J.S.A. 2C:5-1 and 2C:35-13) and attempting to obtain prescription legend drugs (N.J.S.A. 2C:5-1 and 2C:35-10.5(d)). The Hudson County Superior Court trial judge limited the testimony of the State’s principal witness on the theory that the physician-patient privilege, N.J.S.A. 2A:84A-22.1 to -22.7 and N.J.R.E. 506, bars the defendant’s doctor from testifying regarding the defendant’s alleged criminal actions of attempting to obtain Percocet within the doctor’s office. Thadeusz Majchrzak, M.D. contacted the Jersey City police to notify them Marcano presented an apparently altered prescription for Percocet at a drug store she frequently utilized and the drug store requested the doctor’s verification regarding the prescription. A prescription form, including three drugs, was provided to defendant’s mother and presented to the pharmacy by Marcano with a fourth item listed on it. During that same office visit, for defendant’s mother’s care, Marcano had asked the Majchrzak to prescribe her Percocet but he refused and referred her to pain management. The trial judge relied on the New York case of People v. Sinski, 669 N.E.2d 809 (N.Y. 1996) in limiting the doctor’s testimony and found the remaining evidence insufficient to establish a criminal purpose for the requested prescription. In an effort to balance the doctor-patient privilege with the statutory duty of doctors to report forged prescriptions the judge limited the doctor’s testimony to only the forgery. Finding that the truth is of ultimate import, the court, in Carchidi v. Iavicoli, 412 N.J. Super. 374, 383 (App.Div. 2010), opined that privileges simply serve to “inhibit the search for the truth.” However, privileges must yield to other societal interests when necessary according to the court in State v. Schreiber, 122 N.J. 579, 583 (1991). Because the physician-patient privilege protects those “who, for the sole purpose of securing preventive, palliative or curative treatment consults a physician” pursuant to N.J.R.E. 506(a) and it is not designed to protect those attempting to commit crimes it does not apply to Marcano. The Appellate Division determined the doctor’s testimony should have been admissible as to the entire series of events and reversed the decision of the trial court judge. If you are facing charges relating to drugs, whether prescription or not, it is critical you obtain experienced criminal defense counsel to fight to protect your rights. If you are convicted or plead guilty to drug charges you face incarceration, loss of driving privileges, substantial fines and penalties and probation. For more information about controlled dangerous substances, prescription drug charges, CDS in a motor vehicle, driving under the influence (DUI) or other criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.