Front, Inc. v Khalil,
___ NY3d ___, 2015 NY Slip Op 01554 
Once litigation has begun, an attorney’s statements are absolutely privileged – the attorney cannot be sued for defamation. (With a caveat – see below) What about statements made during the run-up to actual litigation? Specifically, what about accusations made in a cease-and-desist letter? Are these privileged as well? And, if so, is the privilege absolute or qualified? This is, strictly speaking, not a procedural issue, yet it relates so closely to the preliminary stages of many lawsuits that it is worth discussion here.
The Court of Appeals held here that comments made by attorneys to prospective adversaries in anticipation of good-faith litigation are entitled to a qualified privilege. The privilege is lost where the statements were not made in good faith, and
“does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations.”
So here, where a defendant made a third-party defamation claim against the plaintiff’s attorney based on good-faith statements in a cease-and-desist letter, the statements were privileged and the third-party complaint was dismissed. Read More
Kneisel v QPH, Inc.,
___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00503 [2nd Dept., 2015]
The issue here was whether medical privilege blocked the disclosure of the name and address of the plaintiff’s decedent’s fellow patient, who might have witnessed the acts of malpractice and negligence alleged against the defendant hospital.
As a general matter, if disclosure of their names and addresses of fellow patients will not carry with it any information which would also disclose their diagnosis and treatment, the privilege is not violated. So, in Rabinowitz v St. John’s Episcopal Hosp., 24 AD3d 530, the alleged negligence occurred in an emergency room. Plaintiff’s decedent fell from a gurney, leading to his death. Plaintiff sought disclosure of the names and addresses of patients in the treatment area, so as to ascertain whether there were any witnesses to the fall. The court held that disclosure of the names and addresses of non-party patients who may have been eyewitnesses does not violate the doctor-patient privileges of the non-party patients, provided that the demanding party does not seek to identify patients by the treatment they received and provided that the location in the hospital does not itself reveal the non–party’s medical status. Since an emergency room provides a broad range of services, disclosure in Rabinowitz did not violate the privilege.
In Kneisel, by contrast, both the plaintiff’s decedent and the fellow-patient were residents of Holliswood Hospital, in a unit for children from 12 to 15 years of age suffering from specific psychiatric disorders. Disclosure of the roommate’s presence in that unit would necessarily have revealed her medical status, and so disclosure was prohibited by the medical privilege.