§ 40.02 PHYSICIAN-PATIENT PRIVILEGE

• Jurisdiction: United States

§ 40.02. PHYSICIAN-PATIENT PRIVILEGE

In contrast to federal practice, most states recognize a physician-patient privilege.⁵ A few have expanded the privilege to include dentists in order to protect communications concerning HIV and AIDS.⁶ In those jurisdictions that have adopted the physician-patient privilege, there is wide variation in the type of exceptions recognized and in the conditions for waiver.

The privilege is intended to encourage disclosure by patients in order to aid in the effective treatment of disease and injury: "the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment."⁷

Nevertheless, proposed Article V of the Federal Rules (which was not enacted) did not include a provision for a physician-patient privilege. Why? First, the instrumental justification seems weak; even without a privilege, patients will disclose information to their physicians. Indeed, how many people know that there is no federal physician-patient privilege? Now that you know, will you stop telling your physician what she needs to know to treat you? Second, if patient privacy is the rationale, there are alternative protections, such as the physician's ethical duty and tort actions for breach of privacy, to effectuate this goal.⁸ The privilege, in any event, only functions in a legal proceeding. Finally, the exceptions to the privilege often gut its protections. For example, the California Evidence Code excepts inter alia (1) all criminal proceedings, (2) cases in which the patient places her condition in issue ("patient-litigant" rule), (3) will contests, (4) malpractice cases, and (5) disciplinary proceedings.⁹

[A] Holder

The holder of the privilege is the patient, not the physician.¹⁰ Only the patient holds the right to invoke and waive the privilege. A doctor or hospital may assert the privilege on the patient's behalf.¹¹

[B] Physician Defined

Depending on the statute, the privilege may apply to doctors of medicine, doctors of osteopathic medicine, doctors of podiatric medicine, and dentists. Sometimes nurses are also included. Frequently, other medical personnel who work under a doctor's supervision fall within the privilege's protection. A paramedic may not come within the privilege.¹²

[C] Professional Relationship Requirement

The communication to the physician must be made while seeking medical treatment.¹³ The privilege does not apply where a physician examines a person for purposes other than treatment. Hence, court-ordered physical examinations or those required for worker's compensation are not covered.¹⁴

[D] Communications

The privilege covers communications made to a physician by a patient and usually covers advice given by the physician to a patient.¹⁵ Matters other than communications and advice do not fall within the privilege, and a treating physician may be compelled to testify about such other matters.¹⁶ Thus, the privilege does not prevent testimony by a physician as to the fact of professional consultation by a person on a certain date. However, some jurisdictions define "communication" broadly to include any medical, dental, or hospital communication "such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis."¹⁷ In addition, exhibition of the body to a physician for examination is typically covered.

[E] Confidentiality

The physician-patient privilege covers only confidential communications.¹⁸ Thus, where the information communicated is intended to become public, the privilege does not apply. The presence of third parties indicates confidentiality is not intended, unless that person furthers the patient's interest in the consultation or examination, such as a relative.¹⁹

[F] Exceptions

The privilege is subject to numerous exceptions, the scope of which depends on the particular jurisdiction.²⁰ The privilege, for example, may not apply to (1) required reports of gunshot, stab, or other wounds,²¹ (2) required reports of suspected child abuse and neglect,²² (3) required reports of abuse of mentally disabled persons,²³ and (4) test results showing the presence of alcohol or drugs in a criminal suspect's body.²⁴ As mentioned...