(concurring in part and dissenting in part). Because we conclude that Supreme Court properly granted summary judgment dismissing the first cause of action, we respectfully dissent from so much of the majority’s determination as would reinstate it.
In its effort to furnish plaintiff with a basis for recovery against defendant Community Health Plan—Kaiser Corporation (hereinafter CHP), the majority has merely selected fragments from various statutory provisions prohibiting the unauthorized disclosure of confidential information necessarily gained or imparted in connection with the rendering of professional health care services and engrafted them on existing tort law. In so doing, it has fashioned a hybrid cause of action, hitherto unknown to the law and bearing essentially no resemblance to the one pleaded by plaintiff. The cause of action so created not only provides plaintiff with a basis for recovery, it imposes strict liability, thereby permitting plaintiff to recover against CHP for its nonprofessional employee’s disclosure of confidential information regardless of fault.
In MacDonald v Clinger (84 AD2d 482), the Fourth Department was faced with the novel question of “whether a psychiatrist must respond in damages to his former patient for disclosure of personal information learned during the course of treatment” (id., at 482). In its detailed analysis, the Court considered a number of alternative grounds for recovery and expressly rejected proffered theories based upon a right to privacy and, of primary relevance here, public policy arising out of New York’s “several statutes and regulations requiring physicians to protect the confidentiality of information gained during treatment” (id., at 484; see, e.g., CPLR 4504 [a]; 4507, 4508 [a]; Mental Hygiene Law § 33.13 [c]; Public Health Law § 2803-c [3] [fl; § 2805-g [3]; §4410 [2]; Education Law § 6509 [9]; 8 NYCRR 29.1 [b] [8]). Instead, the Court adopted the rationale that a duty not to disclose confidential personal information springs from the implied covenant of trust and confidence that is inherent in the physician-patient relationship and breach of which is actionable as a tort (MacDonald v Clinger, supra, at 485-487; see, Tighe v Ginsberg, 146 AD2d 268, 271).
*189Based upon the underlying analysis, it is apparent that the cause of action enunciated in MacDonald v Clinger (supra), and subsequently applied by this Court in an action against a certified social worker (Harley v Druzba, 169 AD2d 1001, 1001-1002), has its origin in the law of malpractice, arising as it does out of the professional relationship of trust and confidence that is “implicit in and essential to the doctor-patient relation” (MacDonald v Clinger, supra, at 487). In fact, in a cogent concurring opinion, then-Justice Simons contended that the cause of action being recognized by the Court was one for malpractice (see, id., at 488). In any event, there can be no question that, in order to fit within the MacDonald rationale, a claim must be asserted against a professional and arise out of that professional’s own breach of the duty of the confidentiality.
The majority’s dilemma is thus made clear: it must find a means of extending the theory of liability underlying MacDonald v Clinger (supra), first, to a cause of action asserted not against a health care professional but against the health maintenance organization that employed her and, second, arising out of an unauthorized disclosure committed not by the professional but by a nonprofessional clerical employee. Finding no substantive law to bridge this gap, the majority predicates its analysis on statutory rules of evidence. It is true that both CPLR 4504 (a) and Public Health Law § 4410 (2) prohibit a health maintenance organization’s disclosure of information acquired in the rendering of professional services by a person authorized to practice medicine, registered professional nursing, licensed practical nursing or dentistry. As relating to the treatment giving rise to the present action, however, none of the specified professionals rendered any services to plaintiff. More relevant to this case is CPLR 4508 (a), which imposes a corresponding prohibition on certified social workers and, among others, a clerk working-for the same employer as the certified social worker.
Outwardly acknowledging that none of these statutory rules of evidence provides a private right of action (see, MacDonald v Clinger, supra, at 484), the majority proceeds to an ultimate holding that belies that position: “these statutes define and impose the scope of the duty of confidentiality which arises between certain health care providers, such as CHP, and their patients. CHP, as a medical corporation, can only act through its agents, servants or employees. Consequently, the duty owed plaintiff by CHP to protect patient confidences, if breached, *190makes CHP directly responsible. To hold otherwise, would render meaningless the imposition of such a duty on a medical corporation, since the wrongful disclosure of confidential information would never be in the scope of one’s employment.” Although by no means clear, it appears that the majority’s intention is to create a new common-law cause of action providing a remedy for the breach of a statutory duty.
We seriously question the wisdom of having an intermediate appellate court create a new legal remedy every time it discovers an unserved need. We also cannot discern any meaningful distinction between a statute’s creation of a private right of action and a judicial recognition of a new common-law cause of action based upon a violation of the very same statute. In our view, the three-part analysis established in Burns Jackson Miller Summit & Spitzer v Lindner (59 NY2d 314, 329-331) would apply in either case, requiring that we make a reasoned determination as to whether (1) plaintiff is one of the class for whose particular benefit the statute was enacted, (2) recognition of a private right of action would promote the legislative purpose, and (3) creation of such a right would be consistent with the legislative scheme (id.; see, Mark G. v Sabol, 93 NY2d 710, 722; Sheehy v Big Flats Community Day, 73 NY2d 629, 633). Under such scrutiny, the cause of action fashioned by the majority fails.
It is noteworthy that Public Health Law § 4410 (2),1 which squarely addresses a health maintenance organization’s obligation to protect the confidentiality of patient records, does not apply to confidential information gained in the course of professional services rendered by a certified social worker (compare, CPLR 4508 [a]). Even more damaging to the majority’s position is Public Health Law § 4410 (l),2 which has the effect of shielding health maintenance organizations from liability for *191the “negligent or wrongful act or misconduct” of its health care professionals. In our view, these express statutory provisions lead to the inevitable conclusion that the majority’s attempt to impose liability upon a health maintenance organization for the disclosure of confidential information imparted to a certified social worker is by no means consistent with the legislative scheme in enacting Public Health Law § 4410 (2), the parallel provision of CPLR 4504 (a), or CPLR 4508 (a).
As a final matter, it should be noted that plaintiff had a facial remedy against CHP under her first cause of action (as pleaded by plaintiff and not as transformed by the majority) but on the summary judgment motion failed to raise a genuine factual issue as to whether CHP improperly trained the culpable file clerk or whether the file clerk was acting in the scope of her employment when she disclosed the information, and also that plaintiff has obtained a judgment on the issue of liability against the party who was actually responsible for her damages.
Spain and Graffeo, JJ., concur with Mugglin, J.; Mercure, J. P., and Carpinello, J., concur in part and dissent in part in a separate opinion by Mercure, J. P.
Ordered that the order entered May 27, 1998 is affirmed.
Ordered that the order entered May 4, 1999 is modified, on the law, by reversing so much thereof as granted the cross motion by defendant Community Health Plan—Kaiser Corporation for summary judgment dismissing the first cause of action in the amended complaint against it; cross motion denied; and, as so modified, affirmed.
. Public Health Law § 4410 (2) provides in pertinent part: “Unless the patient waives the right of confidentiality, a health maintenance organization * * * shall not be allowed to disclose any information which was acquired * * * in the course of the rendering to a patient of professional services by a person authorized to practice medicine, registered professional nursing, licensed practical nursing, or dentistry, and which was necessary to acquire to enable such person to act in that capacity, except as may be otherwise required by law.”
. Public Health Law § 4410 (1) provides: “The provision of comprehensive health services directly or indirectly, by a health maintenance organization through its comprehensive health services plan shall not be considered the practice of the profession of medicine by such organization or plan. However, each member, employee or agent of such organization or plan shall be fully *191and personally liable and accountable for any negligent or wrongful act or misconduct committed by him or any person under his direct supervision and control while rendering professional services on behalf of such organization or plan.”