§ 40.01 Introduction

JurisdictionNorth Carolina
§ 40.01 Introduction

The doctor-patient and psychotherapist-patient privileges share much in common. Although the doctor-patient privilege is the older of the two, there is no doctor-patient privilege in federal practice.1 In contrast, the Supreme Court recognized the psychotherapist-patient privilege in Jaffee v. Redmond2 in 1996. As drafted by the Advisory Committee, proposed Federal Rule 504 recognized the psychotherapist, but not the physician, privilege.3 However, Congress deleted all the proposed privilege rules in 1975 when it substituted the general federal rule on privileges (Rule 501).4

As with all confidential communication privileges, the issues can be divided into the following components: (1) Who are the proper parties (e.g., who is a patient and who is psychotherapist?); (2) What constitutes a communication?; (3) Was the communication made incident to the professional relationship? Everything said to a doctor or therapist is not privileged; (4) Was the communication intended to be confidential?; (5) What are the exceptions?; and (6) How is the privilege waived? This last question requires us to identify the "holder" of the privilege.


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Notes:

[1] See Whalen v. Roe, 429 U.S. 589, 602 n. 28 (1977) ("The physician-patient evidentiary privilege is unknown to the common law. In States where it exists by legislative enactment, it is subject to many exceptions and to waiver for many reasons."); United States v. Bek, 493 F.3d 790, 802 (7th Cir. 2007) ("[W]e can find no circuit authority in support of a physician-patient privilege, even after Jaffee."); Gilbreath v. Guadalupe Hosp. Found., Inc., 5 F.3d 785, 791 (5th Cir. 1993) ("there is no physician-patient privilege under federal law"); Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992) ("A decision in this case based on considerations of the physician-patient relationship...

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