2.4 Privileges Limiting Scope of Discovery

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

2.4 PRIVILEGES LIMITING SCOPE OF DISCOVERY

other than relevance, privilege is the major limitation on the broad scope of discovery permitted by the Rules. A number of privileges and related doctrines limit the scope of discovery in Virginia.

2.401 Attorney-Client Privilege. Probably the best-known privilege is the one that protects confidential communications between attorneys and their clients from disclosure.²⁴ paragraphs 12.2 and 12.4 of chapter 12 of this book discuss the attorney-client privilege in detail.

2.402 Doctor-Patient Privilege and Related Limitations.

A. In General. Common law did not recognize as privileged those communications between a doctor and a patient.²⁵ Although this privilege does not apply in criminal proceedings,²⁶ the Virginia legislature has created a statutory doctor-patient privilege for litigants in civil actions. The statute provides:

Except at the request or with the consent of the patient, or as provided in this section, no duly licensed practitioner of any branch of the healing arts shall be permitted to testify in any civil action, respecting any information that he may have acquired in attending, examining, or treating the patient in a professional capacity.²⁷

The statute also applies to clinical psychologists licensed under the provisions of sections 54.1-3600 et seq. of the Virginia Code.²⁸

The statutory doctor-patient privilege protects a patient's right to confidentiality and encourages frank and honest discussions between medical professionals and their patients. As the Supreme Court of Virginia has stated:

[C]onfidentiality is an integral aspect of the relationship between a health care provider and a patient and, often, to give the health care provider the necessary information to provide proper treatment, the patient must reveal the most intimate aspects of his or her life to the health care provider during the course of treatment.²⁹

B. Elements. To invoke the doctor-patient privilege to prevent disclosure, a litigant must show that he or she disclosed the information or evidence the adverse party desires to obtain to a "duly licensed" medical professional while such a person attended, examined, or treated the litigant in a "professional capacity."³⁰

C. Exceptions.

1. Consent of Patient. The statute expressly provides that if a patient consents, a medical professional may disclose any information acquired during the treatment of the patient.³¹

2. Physical or Mental Condition of Patient. Where the patient's physical or mental condition is at issue in a civil action, he or she may not invoke the doctor-patient privilege to prevent the physician from disclosing factual information, impressions, or opinions documented contemporaneously with the physician's treatment of the patient.³² if a plaintiff claims damages for personal injuries and the defendant disputes the extent of the injuries, the plaintiff's physical condition is sufficiently at issue to require the plaintiff to disclose during discovery all relevant medical reports, including otherwise privileged information.³³ in a personal injury case, the defendant is allowed to discover the plaintiff's medical records from the plaintiff's personal physician as well as from an independent medical examiner.³⁴

This exception to the doctor-patient privilege expressly applies in workers' compensation cases. The Workers' compensation Act removes the privilege for information communicated between the physician and an injured patient during an examination or treatment pertaining to a workers' compensation claim.³⁵ This exception only applies to examinations requested by an employer or ordered by the Workers' compensation commission and covers all physicians present during the communications, including personal physicians who accompany the patient to the examination.³⁶

3. Discretion of Court. The doctor-patient privilege statute expressly allows a court to order the disclosure of a patient's medical records when that information is "in the exercise of [the court's] sound discretion . . . necessary to the proper administration of justice."³⁷

Peoples Security Life Insurance Co. v. Arrington³⁸ hints at the difficulty litigants may have satisfying the "proper administration of justice" standard. in that case, the plaintiff sued her deceased husband's insurer for payment on his life insurance policy. The deceased had been fatally stabbed by an unknown assailant, and the insurer theorized that the plaintiff may have been the culprit. in an attempt to obtain the plaintiff's medical records, the insurer requested that the trial court order disclosure "to see what information, if any, those medical records contained relating to the murder of [the plaintiff's] husband and her involvement therein."³⁹ The trial court denied the insurer's request, and the Supreme Court of Virginia affirmed, stating that "[w]e cannot say, based on this single statement, that the administration of justice required disclosure of [the plaintiff's] medical records and, therefore, that the trial judge abused his discretion."⁴⁰

4. Patient Unlawfully Attempting to Procure Drug Prescription. A patient may not invoke the doctor-patient privilege when he or she attempted to obtain an unlawful drug prescription.⁴¹

5. Protection or Enforcement of Practitioner's Legal Rights. The doctor-patient privilege statute provides an important exception relating to the protection of the doctor's rights. This statute states that:

Nothing herein shall prevent a duly licensed practitioner of the healing arts, or his agents, from disclosing any information that he may have acquired in attending, examining or treating a patient in a professional capacity where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of a practitioner's legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law.⁴²

The Supreme Court of Virginia has read this exception broadly. in Archambault v. Roller,⁴³ the court addressed the issue of whether an attorney violated the doctor-patient privilege statute when he obtained medical information from his client, an anesthesiologist, about a malpractice plaintiff without the plaintiff's consent. The anesthesiologist was not a defendant in the underlying medical malpractice action. The court held that Virginia's doctor-patient privilege statute allowed the attorney to obtain information from the anesthesiologist without the patient's consent where the information was necessary for the protection of the anesthesiologist's legal rights. The court looked to the "plain meaning" of section 8.01-399(F) of the Virginia Code and found that the subsection "clearly permits" a doctor to disclose patient information "in connection with the protection or enforcement of [the doctor's] legal rights."⁴⁴ Since the anesthesiologist could disclose the information to her attorney for the protection of her "legal rights" in the underlying malpractice action, the attorney did not violate the statute by obtaining such information.

D. Other Issues.

1. Right to Privacy in Patient Health Records. Section 32.1-127.1:03 of the Virginia Code establishes and outlines patients' privacy rights in their medical records. The statute prohibits the disclosure of patient records by a health care provider except where otherwise permitted by state or federal law. it prohibits removal of the records from the provider's premises without statutory, regulatory, court-ordered, or provider approval. it also forbids a third party that received the records from redisclosing or revealing them without the patient's consent when the redisclosure has no relation to the purpose of the initial disclosure. No prohibition on redisclosure exists, however, when the third party is another health care entity making disclosures pursuant to this statute.⁴⁵

The statute lists thirty-six situations in which health care providers may disclose patients' records. included are disclosures where (i) the patient or the authorized representative of a minor patient provides written consent pursuant to statute; (ii) oral consent is received in emergency situations; (iii) a court has issued a subpoena; or (iv) disclosure is reasonably necessary to a provider's defense against a wrongful conduct accusation.⁴⁶

Section 32.1-127.1:03(F) prohibits disclosure to the patient or his or her representative when the patient's attending physician, clinical psychologist, or clinical social worker notes in the patient's file that it is "reasonably likely" that receiving or reviewing the records would harm the patient or another person. if the medical records custodian denies a patient's request for this reason, the patient may select, at his own expense, another qualified physician, clinical psychologist, or clinical social worker to review the records independently and determine if disclosure is appropriate.⁴⁷ pursuant to section 8.01-413(B) of the Virginia Code, the patient may also request that health records be provided directly to his or her attorney or authorized insurer. The custodian must inform the reviewing physician or clinical psychologist of the prior determination that disclosure would be harmful to the patient.⁴⁸ The statute also contains detailed rules and procedures governing subpoenas duces tecum.⁴⁹

2. Patient's Private Right of Action for Physician's Unauthorized Disclosure of Confidential Medical Information. In Fairfax Hospital Systems, Inc. v. Curtis,⁵⁰ the court acknowledged the existence of a private right of action in tort against a hospital that discloses information about a patient's medical history to third parties without the patient's consent. The plaintiff, the administrator of her infant daughter's estate, had previously filed a medical malpractice action against the hospital on her daughter's behalf. While...