A woman is facing a case against her for causing the death of a child which was found in a plastic bag by the police inside her house. The child found was said to be given birth recently by the woman. An indictment is filed and she is being charged with murder in the second degree, man slaughter in the first and second degree, and endangering the welfare of a child.
A New York Injury Lawyer said that the defendant woman filed for the re-inspection by the court of the grand jury minutes to determine the admissibility of evidence since it was acquired through the violation of the physician-patient privileged communication and search warrant was properly obtained.
The judged, in an oral decision, agreed to the re-inspection of the minutes. This will determine if there is a probable cause to issue a search warrant of the defendant’s house, whether the evidence presented will be sufficient to support the charge of manslaughter in the first degree, which requires the “intent to cause an injury”, and lastly, whether the indictment should be dismissed.
Based on the summary of evidence before the grand jury, one medical technician, in her testimony, she received a call that the daughter of the caller was bleeding. When she arrived at the house, she went upstairs and found the daughter which was the defendant in the case. The defendant was found in the toilet, and she was sweating, clammy, and there were also blood clots found on the floor. The medical technician asked the defendant if she was pregnant or recently pregnant, which was answered in the negative. The defendant was then brought to the hospital.
Another testimony was given by a police officer. He said, he was responding to an order made by his supervisor telling him that the hospital called that they have a woman who, apparently, gave birth but the baby was missing. When the police officer reached the house of the defendant, they were greeted by the defendant’s sister. They asked her if the baby was with her, she said that she did not know anything about the baby. The police officers persistently asked her if the baby was inside the house, she only said that there were plastic bags in the back of the house. A Long Island Personal Injury Lawyer said they found a female baby inside a black garbage bag which was also inside a shopping bag. The baby was wrapped in a bloody towel and she still had her umbilical cord attached. The baby was taken to the hospital by the ambulance lifeless.
A doctor, who was an expert in forensic pathology, made an autopsy to the baby. Based on the test, the baby was recently born, fully-formed, was born alive and had her umbilical cord attached to her. The baby girl was found be live long enough to breathe because of the bubbles found in her intestines. The doctor believed that the cause of death to be “asphyxia and hypothermia due to environmental exposure to cold temperature” and the manner of death to be homicide. In her opinion and based on a reasonable degree of medical certainty, her conclusion is to be in line with that the baby was placed inside a plastic bag and was left to die outside in the cold for several hours.
The defendant questions the admissibility of the evidence. She believes that information she disclosed to the medical technician and doctor were both under the physician-patient privileged communications and cannot be used to warrant the search of her house. The fruits obtained from the illegal search should be inadmissible in court.
The court ruled that the privilege does not apply to this case because it involves communication made to a medical technician who is not a physician or is employed by a physician.
On the other hand, the privilege is not limited to direct communications between the physician and patient. Those information which they have acquired in attending the patient in their professional capacity, and which was necessary to enable them to act in their capacity are also covered by this privilege. The form in which the information may be stored whether in the memory of the doctor or in medical records is not important, as long as it is protected by under the physician-patient communication. However, the because of the defendant’s condition in the hospital, a normal person would have readily perceived that she has recently given birth, and the privilege will not apply.
Based on a constitutional doctrine, police can enter the premises without a search warrant to protect individuals in distress, to assist victims of crimes that have just occurred, or to investigate suspicious signs of impending danger. The search of her house was done after she was treated and found out that she gave birth. Emergency exists because the baby was missing. The exception applies to the case and evidence acquired will be admissible in criminal prosecution.
A Manhattan Personal Injury Lawyer said it has been judicially recognized that the privilege communications between physicians and patients must be overcome in instances where silence would place an innocent person’s life in jeopardy and that the disclosure of the confidential information made under these circumstances may later be used against the patient in a criminal proceedings. This is called the “Tarasoff exception.” Based on this, the privilege can be overcome provided that the patient demonstrates clear and present danger to a third party. In this case, the baby’s life was in danger. The disclosure made by the medical technician and hospital is covered by the Tarasoff exception and it overcomes the privilege communication, making the evidence acquired admissible.
The evidence acquired showed that the defendant was indeed recently given birth and denied to the medical technician that she had done so, also withheld from the medical technician the information of the whereabouts of her baby, who was found by the police officers outside her house on a cold night several hours after, wrapped in bloody towels and inside a garbage bag, and was left to die. The evidence supports a rational inference that the defendant recklessly engaged in conduct which created a grave risk of serious physical injury or death to her baby and thereby caused the baby’s death. This sustains the decision charging her of murder in the second degree.
Manslaughter counts in the first and second degree were also sustained based on the rational inference that could be drawn from the acts of the defendant, with intent to cause physical injury to the baby, recklessly engaged in conduct creating grave risk of serious physical injury to the baby and thereby caused the baby’s death.
Finally, the defendant’s charge on endangering the welfare of a child was also sustained based on that it can be inferred that the defendant knowingly acted in a manner likely to be injurious to the physical welfare of the baby.
Privilege communication is one of the many rights guaranteed to us by the constitution. Evidence acquired in violation of our rights should be inadmissible and cannot be used against us. Stephen Bilkis and Associates can recommend NY medical malpractice lawyers that can help protect these rights. NY Injury lawyers can also give advice on how we can collect from those who caused us injuries.