§503 Physician/chiropractor/psychologist/dentist/professional

• Library: Evidence Restated Deskbook (2021 Ed.)

§503 Physician/Chiropractor/Psychologist/Dentist/Professional

Counselor/Social Worker/Marital and Family Therapist-Patient or Client

Privilege

A. Information received from a patient or client is generally inadmissible. Unless otherwise provided by statute, physicians, chiropractors, psychologists, dentists, professional counselors, social workers, and marital and family therapists are barred from disclosing confidential information that they have acquired from their patients or clients.

For the privilege to apply, three main elements must be shown:

1. The relation of physician, chiropractor, psychologist, dentist, professional counselor, social worker, or marital and family counselor must exist.

2. The information must be acquired while attending the patient or client professionally.

3. The information must be necessary to enable the physician, chiropractor, psychologist, dentist, professional counselor, or marital and family counselor to prescribe and provide treatment or counsel in that capacity.

B. Waiver of privilege. The privilege may be waived by the patient or client.

Notes

A. Information received from a patient or client is generally inadmissible

The purpose and origin of the privilege

The caselaw dealing with health care provider-patient privileges is mainly confined to the physician-patient privilege. But the holdings are relevant to application in dentist, chiropractor, psychologist, social worker, and marital and family therapist contexts because, as will be shown below, generally, confidential communications to them by their patients or clients that were communicated in the course of the rendering of professional services is privileged information and may not be disclosed without the prior consent of the patients or clients.

'"The purpose of the physician-patient privilege is to enable the patient to secure complete and appropriate medical treatment by encouraging candid communication . . . , free from fear of the possible embarrassment and invasion of privacy engendered by an unauthorized disclosure of information.'" State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. banc 2006) (quoting State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo. banc 1989), abrogated by Brandt v. Pelican, 856 S.W.2d 658 (Mo. banc 1993); State ex rel. Maloney v. Allen, 26 S.W.3d 244, 247 (Mo. App. W.D. 2000)).

The privilege was unknown at common law. State v. Long, 165 S.W. 748, 753 (Mo. 1914). It "has no constitutional underpinning and is statutory in origin." State v. Skillicorn, 944 S.W.2d 877, 897 (Mo. banc 1977), overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008) (quoting State v. Ward, 745 S.W.2d 666 (Mo. banc 1988)).

The statute is § 491.060(5), RSMo 2016, which provides:

The following persons shall be incompetent to testify:

. . . .

(5) A physician licensed pursuant to chapter 334, RSMo, a chiropractor licensed pursuant to chapter 331, RSMo, a licensed psychologist or a dentist licensed pursuant to chapter 332, RSMo, concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist.

Although the privilege did not exist at common law, courts do not apply a rule of strict construction to it. "To the contrary, [they apply] . . . an elevated one" because the statute "was intended to invite confidence between patient and physician and to prevent a breach of such confidence." Green v. Terminal R. Ass'n of St. Louis, 109 S.W. 715, 720 (Mo. 1908); see also State ex rel. Maloney v. Allen, 26 S.W.3d 244 (Mo. App. W.D. 2000). Courts should construe it "as to further its life and purpose." Green, 109 S.W. at 720.

The statutory "privilege applies to all circumstances in which [the medical provider] is called on to give testimony or produce records concerning information that was acquired from a patient, regardless of whether the information will be used against the patient." State ex rel. Stinson v. House, 316 S.W.3d 915, 919 (Mo. banc 2010).

See also HIPAA (Health Insurance Portability and Accountability Act of 1996), Pub. L. No. 104-191, 110 Stat. 1936, which intended to "ensure the integrity and confidentiality of [patients'] information" and to protect against "unauthorized uses or disclosures of the information." 42 U.S.C. § 1320d-2(d)(2)(A) and (B)(ii). It prohibits the disclosure of protected healthcare information with certain exceptions. See, generally, 45 C.F.R. §§ 164.502 et seq. See State ex rel. Proctor v. Messina, 320 S.W.3d 145, 153–58 (Mo. banc 2010), for a discussion of the various exceptions, including one that permits a health care provider to disclose otherwise protected health information in the course of any judicial or administrative proceeding if the disclosure is in response to an order of a court or in response to a subpoena, discovery request, or other lawful process. The Court found in Proctor that the "judicial proceeding" exception does not apply to a meeting for ex parte communications, even though the circuit court "authorized" the nonparty providers to engage in informal ex parte communications with counsel for the defendants.

Section 337.055, RSMo 2016, also provides that communications to a licensed psychologist are privileged:

Any communication made by any person to a licensed psychologist in the course of professional services rendered by the licensed psychologist shall be deemed a privileged communication and the licensed psychologist shall not be examined or be made to testify to any privileged communication without the prior consent of the person who received his professional services.

This privilege exists without the physician-patient privilege requirement that the communications must pertain to prescription or treatment in order to be classified as privileged. See State v. Hawkins, 328 S.W.3d 799, 810 n.4 (Mo. App. S.D. 2010).

The bar of disclosure provided by § 491.060(5), RSMo 2016, is not strictly testimonial

Although the statutory privilege is, by its express terms, strictly a testimonial privilege, physicians are also obligated not to disclose confidential medical information out of court. State ex rel. Norman v. Dalton, 872 S.W.2d 888, 890 (Mo. App. E.D. 1994).

We believe a physician has a fiduciary duty of confidentiality not to disclose any medical information received in connection with his treatment of the patient. This duty arises out of a fiduciary relationship that exists between the physician and the patient. If such information is disclosed under circumstances where this duty of confidentiality has not been waived, the patient has a cause of action for damages in tort against the physician.

Brandt v. Med. Defense Assocs., 856 S.W.2d 667, 670 (Mo. banc 1993).

Information that is covered by the privilege

Any information that a physician acquired from the patient while attending the patient and that is necessary to enable the physician to prescribe and provide treatment in that capacity is privileged. See State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997); State v. Lewis, 735 S.W.2d 183, 187 (Mo. App. S.D. 1987).

This includes information received "orally, by signs or by observation of the patient after he has submitted himself for examination." Gartside v. Conn. Mut. Life Ins. Co., 76 Mo. 446, 449 (1882): F___ v. F___, 333 S.W.2d 320, 325–26 (Mo. App. E.D. 1960) (the privileged information extends not only to oral and written communications but "to that which the physician obtains through his observation, inspection, examination and treatment of the patient"). Thus, the fact that a physician smelled liquor on the patient's breath and that the patient appeared to be intoxicated is privileged information. Owens v. Kansas City, C.C. & S.J. Ry. Co., 225 S.W. 234, 236 (Mo. App. W.D. 1920); Kling v. Kansas City, 27 Mo. App. 231 (W.D. 1887).

The statutory privilege has been applied to hospital records, even though they can be seen and copied by staff members and their employees and the fact that insurance, with its attendant waiver forms, is common, rendering the element of secrecy not present. State ex rel. Benoit v. Randall, 431 S.W.2d 107, 109 (Mo. banc 1968). The privilege also applies to medical records. State ex rel. Stinson v. House, 316 S.W.3d 915, 918 (Mo. banc 2010) (citation omitted) ("The physician-patient privilege 'applies to medical records and all aspects of discovery.'").

If privileged, not discoverable

This privilege "covers the disclosure of confidential medical information by testimony in court or by formal discovery such as interrogatories, depositions, or production of medical records." Brandt v. Pelican, 856 S.W.2d 658, 661 (Mo. banc 1993); State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. banc 2006); State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 342 (Mo. banc 1998). "The mere fact that . . . privileged medical records may be relevant to [a claim or defense] . . . does not mean that . . . medical records are discoverable [because t]he very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant and discoverable from the scope of discovery." State ex rel. Stinson v. House, 316 S.W.3d 915, 919 (Mo. banc 2010).

Information not covered by the privilege

Missouri courts have held that the physician-patient privilege does not prevent disclosure of information that is unnecessary to prescribe and provide treatment, including the following:

· The name of the doctor or the time or place of treatment. State ex rel. Husgen v. Stussie, 617 S.W.2d 414, 415–16 (Mo. App. E.D. 1981), superseded by statute on other grounds, § 491.060(5), RSMo 2016, as recognized in Roth v. Roth, 793 S.W.2d 590 (Mo. App. E.D. 1990).

· Statements made in response to a doctor's questions when the treatment did not depend on the answer. State v....