Section 2.20 Physician-Patient Privilege

• Library: Discovery 2015

One of the areas of privileged matter protected from discovery under Rule 56.01(b)(1) involves the physician‑patient privilege. Section 491.060(5), RSMo 2000, renders a physician or surgeon incompetent to testify concerning information that was acquired from a patient while attending the patient in a professional capacity and that was necessary to enable the physician to prescribe or provide treatment for the patient. This privilege has been extended to hospital records. See State ex rel. Benoit v. Randall, 431 S.W.2d 107 (Mo. banc 1968); State ex rel. DeGraffenreid v. Keet, 619 S.W.2d 873 (Mo. App. S.D. 1981). The Supreme Court has recognized both a testimonial privilege and a physician’s fiduciary duty to refrain from revealing confidential medical information. See State ex rel. Crowden v. Dandurand, 970 S.W.2d 340 (Mo. banc 1998); Brandt v. Med. Defense Assocs., 856 S.W.2d 667 (Mo. banc 1993).

The privilege is a personal one and must be claimed by the person entitled to assert it. Wells v. City of Jefferson, 132 S.W.2d 1006 (Mo. 1939). If the person entitled to claim the privilege is incompetent or a child and unable to assert the privilege, a parent or guardian may do so on the child’s behalf. When, however, the child is the subject of the litigation, the privilege may not be invoked by the parent to protect the parent’s interest as opposed to that of the child. In re Marriage of Daneshfar, 953 S.W.2d 95 (Mo. App. S.D. 1997) (quoting In re M__ P__ S__, 342 S.W.2d 277 (Mo. App. E.D. 1961)).

The privilege against discovery may be waived, however, if a party fails to invoke it. In addition, when the physical condition of the plaintiff is in issue under the pleadings, the plaintiff is considered to have waived the privilege concerning information from doctors or medical and hospital records bearing on that issue. State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo. banc 1968); State ex rel. Svejda v. Roldan, 88 S.W.3d 531, 533 (Mo. App. W.D. 2002). This is subject, however, to the court’s authority to issue a protective order to limit discovery to matters reasonably related to the condition in issue and those that are not too remote in point of time. It should also be noted that, as pointed out by the Roldan court, a protective order under Rule 56.01(c) can be fashioned to restrict dissemination of the information to individuals other than duly designated experts. Roldan, 88 S.W.3d at 533.

These cases clarify the question of waiver of the...