§ 40.01 Introduction

• Jurisdiction: United States

§ 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...