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Kessler v. Troum

Decided: August 4, 1978.

FLORENCE KESSLER AND GERALD KESSLER, PLAINTIFFS,
v.
NEWTON TROUM, D.D.S., P.A., DEFENDANT



Gaulkin, J.s.c.

Gaulkin

In this dental malpractice action plaintiffs move to compel defendant to disclose certain information which defendant claims to be privileged; the narrow and novel question presented is whether communications between a dentist and his patients are privileged under N.J.S.A. 2A:84A-22.1 et seq.

Between 1969 and 1975 plaintiff Florence Kessler underwent a course of dental restoration and rehabilitation with defendant. In 1975 she was found to have a malignant lesion of the gums. She charges that defendant negligently caused that condition and failed to properly and timely diagnose it.

At defendant's deposition plaintiffs inquired as to his prior experience with oral cancer. Defendant disclosed two prior occasions, one involving the lip and cheek and the other involving the tongue. Plaintiffs then sought to elicit both the details of those conditions and the identities of the patients who suffered them. Asserting the physician-patient privilege, defendant refused to answer those further inquiries; at argument of the present motion, however, his counsel indicated that defendant would not object to answering questions concerning the cancers which his patients had if he were permitted to withhold the identities of those patients.

Plaintiffs do not dispute that if defendant were a medical doctor the identities of nonparty patients conjoined with a description of their illnesses and treatment would constitute privileged communications. See Osterman v. Ehrenworth , 106 N.J. Super. 515, 525 (Law Div. 1969). The sole question presented is whether the same privilege attaches to such communications between a dentist and his patient.

N.J.S.A. 2A:84A-22.2 accords privilege to communications between patient and "physician." N.J.S.A. 2A:84A-22.1 defines "physician" as

* * * a person authorized or reasonably believed by the patient to be authorized, to practice medicine in the State or jurisdiction in which the consultation or examination takes place * * *.

Nowhere does the statute define the phrase "authorized to practice medicine."

The applicability of the privilege statute to dentist-patient communications has not been addressed in any reported New Jersey cases. Case law in other jurisdictions is sparse and unpersuasive. In People v. DeFrance , 104 Mich. 563, 62 N.W. 709 (Sup. Ct. 1895), a forgery prosecution, the trial court permitted the prosecution to adduce testimony from defendant's dentist as to treatment which arguably explained discrepancies between eyewitness descriptions of the forger and defendant's appearance at the time of trial; in affirming the conviction the Michigan Supreme Court held that the statute granting privilege to communications with a person "authorized to practice medicine or surgery" was intended:

Similarly in Howe v. Regensberg , 75 Misc. 132, 132 N.Y.S. 837 (Sup. Ct. 1911), the court upheld a judgment in favor of a dentist for services rendered, where the dentist

had testified to the services he provided to defendant's decedent. The court, reviewing a number of local statutes, concluded that the intention of the legislature was to exclude dentists from the privilege accorded ...


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