concurs and votes to affirm the order and judgment, with the following memorandum: I agree with the majority that the unrebutted testimony of the petitioner presented clear and convincing evidence of Marie H.’s inability to provide for her personal needs and property management. As such, the petitioner met her evidentiary burden under Mental Hygiene Law § 81.12 for the appointment of a guardian. However, I do not agree with the majority’s conclusion that the testimony of the crisis team psychiatrist who initially evaluated the alleged incapacitated person (hereinafter the AIP) was properly admitted. In my opinion, such testimony violated the physician-patient privilege (see CPLR 4504 [a]).
The majority argues that since Dr. Stern did not prescribe medication or otherwise participate in the treatment of the AIP after her involuntary hospitalization, he qualifies as a nontreating physician who can testify without violating the privilege. I do not agree. Dr. Stern was attending the AIP in a professional capacity when he observed and evaluated her as part of a crisis team. This assessment resulted in her involuntary hospitalization and necessarily involved medical determinations protected by the privilege. It does not matter that the physician-patient relationship arose from the “exigencies of the patient’s situation” (Meyer v Supreme Lodge, Knights of Pythias, 178 NY 63, 69 [1904], affd 198 US 508 [1905]). One who is treated by a physician, even against her will, becomes a patient of that physician by operation of law (id. at 67). “The relation of physician and patient, so far as the statute under consideration is concerned, springs from the fact of professional treatment, independent of the causes which led to such treatment. An examination made in order to prescribe establishes the same relation” (id.; see also People v Decina, 2 NY2d 133, 142 [1956]).
The physician-patient privilege applies to information obtained by a medical professional for diagnostic purposes as well as treatment (see Hughson v St. Francis Hosp. of Port Jervis, 93 AD2d 491, 499 [1983]). As the court explained in Hughson (supra), the test as to what constitutes privileged information includes “not only communications received from the lips of the patient but such knowledge as may be acquired from the patient [herself], from the statement of others who may surround [her] at the time, or from observation of [her] appearance and symptoms” (id. at 498, quoting Edington v Mutual Life Ins. Co. of N.Y., 67 NY 185, 194 [1876] [emphasis added]).
*709It is obvious that Dr. Stern reached his conclusions regarding the AIP’s need for hospitalization based on his observations of the AIP’s appearance and symptoms on September 5, 2003. His diagnosis of the AIP as a paranoid individual suffering from a schizoaffective disorder necessarily required an application of his medical skills and knowledge and were not the mere observations of a layperson. Accordingly, Dr. Stern’s role as a diagnosing medical professional gave rise to a physician-patient relationship with the AIR and the statutory privilege of CPLR 4504 (a) attached to his professional observations. As the Court of Appeals remarked in Dillenbeck v Hess (73 NY2d 278, 284 n 4 [1989]), “[t]hough a physician is not precluded from testifying concerning ordinary incidents and facts of a person’s medical history that are obvious to those without professional training, it is universally acknowledged that any medical information acquired by the physician through the application of professional skill or knowledge is protected by the statute.”
Courts that have considered the physician-patient privilege within the context of contested article 81 proceedings such as the one under review have determined that medical testimony violative of the privilege is not admissible in the absence of a waiver (see Matter of Rosa B.-S. [William M.B.], 1 AD3d 355, 356 [2003]; Matter of Seidner, NYLJ, Oct. 8, 1997, at 28, col 4 [Sup Ct, Nassau County, Rossetti, J.]; Matter of Tara X., NYLJ, Sept. 18, 1996, at 27, col 1 [Sup Ct, Suffolk County, Prudenti, J.]; Matter of Higgins [England], NYLJ, Oct. 6, 1995, at 27, col 2 [Sup Ct, New York County, Ramos, J.]). As Presiding Justice Prudenti pointed out in Matter of Tara X. (supra), once a guardianship proceeding has become adversarial, the limited exception to the physician-patient privilege carved out by Mental Hygiene Law § 81.09 (d) must give way to the evidentiary and due process concerns of the AIR “To hold otherwise would afford respondents in Article 81 proceedings a modicum of due process which falls below that afforded their counterparts in other legal proceedings and would effectively nullify the heavy quantum of proof imposed upon the petitioners seeking guardianship over non-consenting persons under § 81.12 (a)” (id. at 3). This position is consistent with the traditionally broad and liberal construction given the privilege in order to achieve its policy objectives, and the narrow construction given the few well-defined legislative limitations thereto (see Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 532 [2002]; People v Sinski, 88 NY2d 487, 492 [1996]; Dillenbeck v Hess, supra at 290 n 6; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130, 135-136 [1983]). (It is worth noting that the exception created by Mental Hygiene Law *710§ 81.09 [d] contemplates both the appointment of a court evaluator pursuant to Mental Hygiene Law § 81.09 [b] and an appropriate motion by an evaluator allowing for the inspection or disclosure of privileged information. Neither precondition was met in this case.)
While I agree with the majority that testimony from a physician is helpful in proceedings of this nature, Mental Hygiene Law article 81 does not require medical testimony for the appointment of a guardian (see Mental Hygiene Law § 81.02 [a] [2]; § 81.03 [e]; Matter of Rosa B.-S., supra at 356; Matter of Harriet R., 224 AD2d 625, 626 [1996]; Matter of Kustka, 163 Misc 2d 694, 699-700 [1994]). Contrary to the majority’s contention, it is irrelevant that the privilege as asserted here impedes the disclosure of legally pertinent information that would assist the court in its determination of the AIP’s mental capacity. (It may reasonably be argued that there is an anomaly in a statute that allows the court to appoint an evaluator who may breach the privilege upon application pursuant to Mental Hygiene Law § 81.09 [d], yet provides no corresponding mechanism for the court to ascertain the same relevant information sua sponte. Nevertheless, it is not for the court to second guess the legislature in this regard and remedy this perceived oversight). “Were we to carve out an exception to the privilege whenever it inhibited the fact-finding process, it would quickly become eviscerated” (Dillenbeck v Hess, supra at 289; see Monica W. v Milevoi, 252 AD2d 260, 262-263 [1999]). As in the present case, petitioners are often able to establish an AIP’s need for a guardian through non-expert and non-privileged testimony (see Matter of Rosa B.-S., supra; Matter of Harriet R., supra). The court should not weaken the physician-patient privilege simply to ease the evidentiary burden on a petitioner attempting to provide unwanted assistance to an AIP. Accordingly, the testimony of Dr. Stern should not have been admitted or considered by the Supreme Court.