On Appeal from Superior Court, Law Division, Essex County.
Brody, Long and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.s.c. (temporarily assigned).
This is an appeal, upon leave granted, from the trial court's denial of the State's motion to compel disclosure of defendant's medical records. The record on appeal does not include a notice of motion or supporting affidavits. We presume the application was made orally at a status conference.
Defendant is under indictment for murder, aggravated arson and other related crimes, all arising out of the death of her husband on September 1, 1985. The victim apparently died as the result of a fire allegedly set by defendant. The murder count is phrased in terms that implicate the death penalty.
On September 2, 1985, defendant gave a statement to the police. Prior to giving the statement, defendant was advised that she was under arrest for the murder of her husband and that she was also charged with aggravated arson. In her statement, defendant admitted that she had killed her husband, gave some details and explained the surrounding circumstances. Defendant explained that she killed him because she tired of his physical and emotional abuse. Defendant alleged that on one occasion her husband had stabbed her in the stomach and as a result she went to Martland Hospital because the wound became infected. She told the police that when "he used to beat on me they used to put me in the crisis intervention ward at Beth Israel Hospital."
In opposing the State's motion, defendant relies upon the patient-physician privilege. N.J.S.A. 2A:84A-22.2. Defendant sharpens her argument by contending that the State's application is premature because the defense has made no decision regarding the use or applicability of the so-called battered-woman's defense. This appears to be the position accepted by the
trial judge. See State v. Kelly, 97 N.J. 178 (1984) for an analysis of the battered-woman's syndrome as an element of self-defense.
In our view, the privilege created by N.J.S.A. 2A:84A-22.2 is applicable, but subject to subsequent sections of the same act withdrawing the privilege under certain circumstances. One of those subsequent sections is N.J.S.A. 2A:84A-22.4 which provides in pertinent part:
There is no privilege under this act in an action in which the condition of the patient is an element or factor of the claim or defense of the patient . . .
If defendant testifies at trial and describes physical and emotional abuse suffered by her at the hands of her husband, that testimony would be admissible and highly probative, at least to establish a degree of criminal homicide less than murder, State v. Kelly, 97 N.J. 178 (1984); State v. Bowens, 205 N.J. Super. 548 (App.Div.1985); or, to establish self-defense. State v. Kelly, supra. If defendant so testifies, the exception to the privilege would clearly apply because the word defense as used in the exception signifies facts that would reduce the crime charged to a lesser included crime, as well as facts that would preclude a conviction. The State would be entitled, at trial, to medical records generated by the alleged episodes of abuse. Defendant's position appears to be that the State is not entitled to those records at this stage of the case, but is entitled to them only at trial if defendant chooses to base a defense upon the fact of spousal abuse, or, at best, before trial if defendant makes a pre-trial election to rely on such a defense. See State v. George, 223 Kan. 507, 575 P. 2d 511 (Sup.Ct.1978) which ruled that the exception applies only after the patient has offered evidence at trial of his physical or mental condition.
We disagree and reverse. Defendant's argument ignores reality. Her statement to the police virtually assures that alleged spousal abuse will be a defensive element or factor at trial. Although ...