Polow, J.J.D.R.C. (temporarily assigned).
In this divorce proceeding each party charges the other with extreme cruelty, each demand judgment dissolving the marriage and, of particular relevance on this motion, each seeks custody of their two children. In connection with his custody demand plaintiff husband moves before trial for leave to take the deposition of a physician and for an order directing the physician and Greystone Park State Hospital to produce for inspection and copying all medical records relating to defendant. Such evidence, reasons plaintiff, is indispensable to an adjudication of the fitness of defendant as a mother and therefore essential to a proper determination of the custody issue in the best interests of the children.
Defendant invokes the patient-physician privilege and insists that by statute she has absolute protection against disclosure of medical information concerning her hospitalization. The parties have consented to an order requiring both to submit to a psychiatric evaluation by a phychiatrist appointed
by the court in connection with the ultimate determination of the custody issue.
Plaintiff argues that he is entitled to inquire into and inspect all available records and information concerning the commitment of his wife to Greystone Park State Hospital in August 1967; that such medical and psychiatric information has a direct bearing upon the custody issue, and that the patient-physician privilege is not applicable in these circumstances.
The patient-physician privilege was first created in New Jersey by enactment of N.J.S.A. 2A:84A-22.1 et seq. , effective July 19, 1968. Although plaintiff concedes that there are no decisions in this State construing the effect of the statute in custody proceedings, he relies on a New York decision, People ex rel. Chitty v. Fitzgerald , 40 Misc. 2 d 966, 244 N.Y.S. 2 d 441 (Sup. Ct. 1963). The husband in Fitzgerald had been hospitalized for mental illness. The court concluded that "in the exercise of the court's inherent power to do what is best to protect the welfare of the infant, the right of the petitioner to invoke the patient-physician privilege must yield to the paramount rights of the infant." The hospital report was not made part of the record in that proceeding but, instead, the judge himself examined the hospital record to determine its relevancy in the custody controversy.
I am convinced that the same procedure is appropriate here and should be the next step in the present dispute. The hospital record may be subpoenaed by plaintiff to be inspected by the court. In the event any portion of the record should be relied upon by the court in resolving the custody issue, the specific factors considered must be disclosed to the parties. The parties are entitled to know all of the elements which enter into a custody determination if they are to have a reasonable opportunity to contradict or rebut any portion thereof. See Callen v. Gill , 7 N.J. 312, 320 (1951). To this limited extent I find that there are fundamental policy considerations which dictate the need
for flexibility in applying the technical rules of evidence in an effort to reach the proper result where the issue involves custody and the welfare of infant children.
Plaintiff, however, seeks more than just inspection of records by the court and argues that the patient-physician privilege is not available at all in commitment proceedings. He is, of course, absolutely correct, as expressly stated in the statute itself. But this is not a commitment proceeding and I do not read the statute to exempt from its provisions all records of hospitalization which result from commitment proceedings where there is an attempt to use such records in subsequent unrelated litigation. The statute provides that the privilege may not be invoked to prevent the introduction of a communication by patient to physician within an action to commit the patient to a mental hospital. It does not remove the hospital record itself from the operation of the statutory privilege, although the hospitalization may in fact have come about through commitment proceedings.
Since our courts have specifically held hospital records to be within the purview of the statutory privilege, Osterman v. Ehrenworth , 106 N.J. Super. 515 (Law Div. 1969), and Unick v. Kessler Memorial Hospital , 107 N.J. Super. 121 (Law Div. 1969), plaintiff's application to inspect and copy the records at this time will be denied except to the limited extent outlined above.
Plaintiff also seeks an order permitting pretrial deposition of one of the committing physicians. Presumably, plaintiff would probe into the reasons for the commitment, the mental problem suffered by defendant and the relationship they may bear to the ...