Court Concluded That in Alleging Damage to Marital Relationship Couple Waived the Privilege of Their Communication with Priest

A New York case dealt with the clergy-penitent privilege. A husband and wife brought a

A New York case dealt with the clergy-penitent privilege.

A husband and wife brought a medical malpractice suit against a physician, alleging, among other things, that the malpractice had resulted in injury to the marital relationship. To refute the claim of marital injury, the physician sought to obtain the counseling records of a Roman Catholic priest to whom the couple had gone for marriage counseling.

The priest refused to comply on the ground that such records were protected by the New York clergy-penitent privilege, which provides: "Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor."

The court concluded that alleging damage to their marital relationship the couple had "waived the privilege of their communication with [the priest] during his counseling with them, solely as to their marital problems. Insofar as other communications with [the priest] not pertaining to marriage counseling, the privilege remains intact."

The court suggested that the couple delete their claim for damages to their marital relationship as a means of avoiding the necessity of having the priest's counseling records subject to disclosure. Ziske v. Luskin, 524 N.Y.S.2d 145 (1987)

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