Section 14.26 Physician-Patient Privilege

• Library: Evidence 2017

C. (§14.26) Physician-Patient Privilege

The following persons shall be incompetent to testify:

. . . .

(5) A physician licensed pursuant to chapter 334, a chiropractor licensed pursuant to chapter 331, a licensed psychologist or a dentist licensed pursuant to chapter 332, 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.

Section 491.060, RSMo 2016.

The physician-patient privilege set out in § 491.060(5) has no constitutional underpinning, is statutory in origin, and may only be modified, expanded, or abolished by the legislature.

The Missouri legislature has limited the protection accorded under the physician-patient privilege statute to those instances where the physician is called upon to testify. In such cases, the law is that the physician is incompetent to testify to the disclosures made to him by his patient, unless the patient waives the physician-patient privilege. The word “testify,” when used in its legal sense, means “to make a solemn declaration, under oath or affirmation, in a judicial inquiry, for the purpose of establishing or proving some fact.” “Testimony” pertains only to evidence as is delivered by a witness at the trial of a cause, either orally or through depositions or affidavits.

State v. Beatty, 770 S.W.2d 387, 391–92 (Mo. App. S.D. 1989) (quoting Black’s Law Dictionary 768 (abr. 5^th ed. 1983)). “The physician-patient privilege is personal to the patient, and generally no person (including the physician) other than the patient may so object.” State v. Evans, 802 S.W.2d 507, 511 (Mo. banc 1991) (citations omitted).

For the physician-patient privilege to apply, the medical information must be given in contemplation of and in preparation for medical care and treatment. “[I]f the physician’s examination of, or conference with, the person is for a purpose other than prescribing or doing any act” other than providing medical care or treatment, “the physician is not disqualified as a witness and may disclose any information so acquired concerning such person.” “[T]he relation of physician and patient does not exist under such circumstances.” State ex rel. Hayter v. Griffin, 785 S.W.2d 590, 596 (Mo. App. W.D. 1990) (quoting Clinton DeWitt, Privileged Communications Between Physician and Patient...