Denying the Witnesses Motion

The witness cannot assert that the statements made by the defendant to the witness are privileged and, therefore, inadmissible because of the physician-patient privilege. Under the New Jersey Rules of Evidence, communications made by a patient to his or her physician are privileged communications; the physician cannot be forced to testify unless the patient waives this privilege. There is one exception to this rule, stating that the privilege does not apply in situations where the services of the physician were sought in order to aid a patient in escaping detection or apprehension after the commission of a crime or a tort.

The defendant, Baldivani, was shot in the leg during a gun battle with police officers which occurred while he was robbing a bank. After his escape, he sought medical attention for the wound from Dr. Vermicelli. Baldivani told Dr. Vermicelli the circumstances under which he was wounded. The doctor has now refused to testify as to this statement, asserting that such testimony would violate the physician-patient privilege which exists between Baldivani and Dr. Vermicelli. As will be shown below, this privilege does not exist in the present circumstances, because Baldivani sought medical attention from Dr. Vermicelli in order to escape apprehension.

New Jersey Rules of Evidence provide that a person has a privilege in a criminal action to r

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ults. Although at least one court said that the exception applies even in cases where the defendant did not seek treatment in order to facilitate the avoidance of apprehension, State in the Interest of M.P.C., 152 N.J. 519, 378 A.2d 77 (1977), this court was overruled on this specific point on appeal. State in the Interest of M.P.C., 397 A.2d 1092 (A.D. 1979). The appellate decision affirmed the result, however, and simply stated that the exception cited by the lower court did not apply in these cases, since the defendant was not seeking treatment to further the avoidance of apprehension. 397 A.2d at 1096. The situation in this case is much stronger. Baldivani was shot during the commission of a crime. A person suffering from a gunshot wound in the leg can certainly be expected to suffer from a disadvantage in making good an escape, compared to a person whose legs are unhurt. A person wounded in such a manner would suffer from restricted mobility, as well as from extreme discomfort. If the wound were serious enough, such a person would also risk death from infection. It almost goes without saying that Baldivani had to seek medical treatment for his leg if he was to have any reasonable expectation of escape. Thus, he so
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