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State v. Snell

August 07, 1998


Before Judges Stern and Kimmelman.

The opinion of the court was delivered by: Kimmelman, J.A.D.

[9]    Submitted July 21, 1998

On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

The opinion of the court was delivered by KIMMELMAN, J.A.D.

At issue is whether the privilege against disclosure of confidential communications made with respect to the relationship of patient and physician, N.J.S.A. 2A:84A-22.1, N.J.R.E. 506 and psychologist and client, N.J.S.A. 14B-28, N.J.R.E. 505, must yield to the obligation imposed upon "any person" to report evidence of child abuse to the Division of Youth and Family Services (DYFS). N.J.S.A. 9:6- 8.10 The trial court held that the psychiatrist consulted by defendant John Snell for treatment: (1) properly reported to DYFS the evidence of child abuse disclosed to him by defendant, and (2) could furnish testimony at defendant's trial.

As a result of the doctor's report, DYFS notified the Trenton police. Defendant was arrested and ultimately indicted. Following the trial court's ruling that defendant's statements to the psychiatrist were properly reportable to DYFS and also admissible at trial, defendant pled guilty to aggravated sexual assault, a first-degree offense, contrary to N.J.S.A. 2C:14-2a. As part of the plea agreement, defendant reserved the right to lodge this appeal contesting the trial court's evidentiary ruling.

On this appeal, defendant argues that his admission of acts of child abuse during his consultation with Dr. Philip Torrance, a psychiatrist whom defendant characterizes in his brief as a psychotherapist, was privileged, and that alternatively, he should not have been committed to the Adult Diagnostic and Treatment Center at Avenel.

The facts are not in dispute. Defendant, fifty-nine years old, was engaged in a long-term relationship with a woman, whom we refer to as his paramour. She had two granddaughters, eleven-year-old K.M. and ten- year-old S.M., who were sisters. Safety concerns had led DYFS to remove S.M. from her mother's home and place her with her grandmother, but K.M. lived nearby in Trenton and would occasionally visit. The children regarded defendant as a substitute grandfather. It appears that, over a period of more than a year, defendant repeatedly performed cunnilingus on them. On at least one occasion, S.M. was present and witnessed the act being performed on her sister. Defendant claimed that it was his intent to instruct or educate the minors so that they would not become sexually involved with boys.

For some reason not apparent in the record, defendant told his paramour what had been taking place with her granddaughters. She demanded that defendant see a psychiatrist for help. Defendant made an appointment and, accompanied by S.M., professionally consulted with Dr. Torrance at his office. During the consultation, defendant admitted to the doctor that he had performed one act of cunnilingus on each of the two girls. At the Conclusion of the session, Dr. Torrance felt it incumbent upon himself, pursuant to N.J.S.A. 9:6-8.10, to report to DYFS the evidence of child abuse that defendant had disclosed to him.

N.J.S.A. 9:6-8.10 provides in pertinent part, that Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Youth and Family Services by telephone or otherwise.

Undoubtedly, this statute is expressive of the Legislature's paramount consideration of protecting children from injury or abuse "by other than accidental means." N.J.S.A. 9:6-8.8. To that end, "any person" having reasonable grounds is required to report evidence of child abuse, under pain of prosecution as a disorderly person for failure to do so. N.J.S.A. 9:6-8.14. As a means of persuasion, and by way of protection, it is provided that anyone making a report pursuant to the statute shall have immunity from any civil or criminal liability that might otherwise be incurred or imposed as a result of the making of the report. N.J.S.A. 9:6-8.13; see Rubenstein v. Baron, 219 N.J. Super. 129, 133 (Law Div. 1987).

There is no mechanism built into the statute to relieve persons who may be privy to confidential communications from the duty to report child abuse to DYFS. By mandating that "any person" having reasonable grounds to suspect child abuse report those suspicions to DYFS, the Legislature simply meant any person, without limitation. See People v. Gearhart, 560 N.Y.S.2d 247, 250 (Crim. Ct. 1990). Where the language of a statute is clear, as we find N.J.S.A. 9:6-8.10 to be, we are obliged to apply that statute as written. In re M.G., 307 N.J. Super. 348, 354 (App. Div.), certif. denied, ____ N.J. ____ (1998); O'Boyle v. Prudential Ins. Co. of Am., 241 N.J. Super. 503, 509 (App. Div. 1990).

Under N.J.S.A. 2A:84A-22.1 to -22.7 and N.J.R.E. 506, both of which set forth the physician-patient privilege, "information which the physician or the patient is required to report to a public official" is not privileged. N.J.S.A. 2A:84A-22.5 and N.J.R.E. 506(e). We find this language to be sufficiently circumscribed to waive the privilege only as to the requirement of making an initial report to a public official. See People v. Younghanz, 202 Cal. Rptr. 907, 911 (Cal. Ct. App. 1984). The physician-patient privilege may not be regarded as being waived in toto. A complete waiver of the privilege occurs only in those limited circumstances where the condition of the patient is an element of a claim or defense made by the patient, or by any party claiming through or under the patient. See Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 311 (1995); Stempler v. Speidell, 100 N.J. 368, 373 (1985).

Although Dr. Torrance is a physician, defendant seeks to avoid the foregoing exception to the physician-patient privilege by relying instead upon N.J.S.A. 45:14B-28 and N.J.R.E. 505, both of which set forth the psychologist privilege and contain no exception where reporting to a public official is required. It is claimed by defendant that he, accompanied by S.M., went to Dr. Torrance not for medical treatment, but for help in the form of psychotherapy and, therefore, the ...

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