Often, yes. A psychiatric patient’s records are normally confidential in New York. But when the person who caused the harm uses their mental condition in their own criminal case — for example, by giving notice of a psychiatric defense, pleading not responsible by reason of mental disease or defect, or raising their mental illness at sentencing — New York courts have held that they waive that confidentiality. The records can then be obtained in the victim’s civil case against the hospital or facility that treated them. In 2026, the First Department held that serving the notice of intent to present a psychiatric defense is enough on its own (S.M. v. City of New York).
Key takeaways
- Hospitals and psychiatric facilities can, in some situations, be liable to people who were never their patients — for example, someone injured by a patient who was improperly released.
- The facility’s own records are usually the key evidence, and facilities often refuse to produce them by citing the patient’s privilege.
- The privilege is waived when the patient places their mental condition in issue, including in a criminal case, and that waiver can carry over to a related civil case even if the patient is not a party to it.
- Under S.M. v. City of New York (1st Dept. 2026), the patient does not have to actually present psychiatric evidence at trial; serving a CPL 250.10 notice is enough.
- The criminal court file should be reviewed carefully, because what was filed or said there can determine whether the records are available.
Originally published in the New York Law Journal by Matthew Gaier and Thomas A. Moore — “Liability to Non-Patients: Waiver of Patient’s Privilege,” August 3, 2026. Read the full column on Law.com (subscription may be required). This page is a plain-English summary for victims and families.
When can a hospital be responsible for harm to someone who wasn’t its patient?
New York law generally limits a doctor’s duty to the doctor’s own patients, but there are exceptions. One of the more common situations, the column notes, is the improper release of a psychiatric patient who poses a danger to themselves or others and then harms someone.
There are limits. New York courts do not impose liability for a mere error in professional judgment (Topel v. Long Island Jewish Med. Ctr., 55 N.Y.2d 682 (1981)). However, a release decision is not protected as professional judgment if it was not based on a careful examination (Bell v. New York City Health & Hosps. Corp., 90 A.D.2d 270 (2nd Dept. 1982)). The Court of Appeals has also recognized duties to third parties in specific circumstances — for example, a provider that administered impairing medication had a duty to warn the patient, for the protection of other motorists (Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563 (2015)). Each case depends on its facts, which is why the records matter.
Why are a psychiatric patient’s records so hard to get?
Three New York laws protect them:
- CPLR 4504 — the physician-patient privilege.
- CPLR 4507 — the psychologist-patient privilege.
- Mental Hygiene Law § 33.13(c) — confidentiality of clinical records for treatment of mental illness, with limited exceptions, including a court order where “the interests of justice significantly outweigh the need for confidentiality.”
As the column explains, the First Department has held that the interests-of-justice exception does not by itself open the records when the physician-patient privilege has not been waived (S.M. v. City of New York, 225 A.D.3d 558 (1st Dept. 2024)).
How does a patient waive the privilege?
A patient can waive it expressly, by authorizing release of the records, or implicitly, by placing their physical or mental condition in issue (Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452 (1983)). Courts have found a waiver where the patient:
- Relied on their psychiatric history in their criminal defense — Webdale v. North Gen. Hosp., 7 Misc. 3d 947 (Sup. Ct. N.Y. County 2005), aff’d 24 A.D.3d 153 (1st Dept. 2005). The waiver applied even though the patient was not a party to the civil case.
- Pleaded not responsible by reason of mental disease or defect — Szmania v. State of New York, 82 A.D.3d 1688 (4th Dept. 2011). The plea itself was enough, even without disclosure of the records.
- Waived it in a prior criminal proceeding — Fox v. Marshall, 91 A.D.3d 710 (2nd Dept. 2012).
- Raised their psychiatric condition as a reason for a lighter sentence — Watton v. Public Admr. of Kings County (Sup. Ct. Kings County 2022), a trial-court decision the First Department cited with approval in S.M.
What did the court decide in S.M. v. City of New York (2026)?
In S.M. v. City of New York, 2026 NY Slip Op 03248 (1st Dept. May 21, 2026), a mother with a long history of mental illness stabbed her two children in April 2019, killing one and injuring the other, shortly after she had been seen at a NYC Health + Hospitals facility. The surviving child and her father sued the hospital system. The First Department held that the mother’s service of a CPL 250.10 notice — formal notice that she intended to present psychiatric evidence in her criminal case — waived her privileges, so her medical and psychiatric records could be disclosed in the civil case.
The court reasoned that once a criminal defendant “attempts to use his or her mental condition to his or her advantage,” the waiver is triggered, and that the possibility of later withdrawing the notice does not change that. It also clarified that a criminal defendant does not have to affirmatively disclose evidence of their mental condition for a waiver to occur, where it is otherwise clear they have put that condition in issue.
What should victims and families do?
- Have a lawyer review the criminal case. Pleas, CPL 250.10 notices, court-ordered psychiatric evaluations and sentencing statements can all matter.
- Act quickly on deadlines. In New York, wrongful death claims generally must be filed within 2 years of death (EPTL 5-4.1), and medical malpractice claims within 2 years and 6 months (CPLR 214-a). If the facility is public, such as NYC Health + Hospitals, a notice of claim is generally due within 90 days (General Municipal Law § 50-e), and shorter lawsuit deadlines usually apply.
- Keep what you have. Police reports, criminal docket numbers, news coverage and any communications with the hospital.
Related: New York medical malpractice lawyers · Wrongful death · NYC wrongful death deadlines · About the authors: Matthew Gaier and Thomas A. Moore · KDLM in the news
Frequently asked questions
Can I sue a psychiatric hospital that released someone who then harmed my family member?
Possibly. New York allows these claims in some situations, such as when a release decision was not based on a careful examination, but courts do not impose liability for a mere error in professional judgment.
Are psychiatric records always confidential?
No. The privilege can be waived by the patient, including by placing their mental condition in issue in a criminal case.
What is a CPL 250.10 notice?
A notice a criminal defendant must serve before presenting psychiatric evidence, such as for an insanity defense. Under S.M. v. City of New York (2026), serving it waives the privilege for a related civil case.
Does the waiver apply if the person who caused the harm is not a defendant in my lawsuit?
It can. New York courts have applied the waiver even when the patient is not a party to the civil case, as long as their mental condition remains in issue.
How long do I have to file?
Generally 2 years from death for wrongful death and 2 years and 6 months for medical malpractice in New York, but claims against public hospitals require a notice of claim, usually within 90 days. Talk to a lawyer right away.
This article summarizes and comments on a New York Law Journal column by KDLM partners Matthew Gaier and Thomas A. Moore. It is general information, not legal advice, and reading it does not create an attorney-client relationship.
Hurt, or lost a loved one, because of a patient who should not have been released? Call (212) 267-4177 for a free, confidential consultation.