Physician-patient privilege in the context of litigation

     Normally, a patient's communication with his or her doctor for the purpose of medical treatment is completely privileged and private.  A medical provider cannot disclose these communications except in certain exceptional circumstances.  A good example of an exception to the privilege is the situation involving abused or neglected children.  Because our culture believes that everyone owes a duty to children in this situation, our public policy provides that any medical provider who reasonably suspects abuse or neglect of a child has a duty to report it to authorities, despite the normal privacy of the physician-patient relationship.   

        A similar exception obtains in the context of threats of future danger to an adult.  If a patient makes believable concrete threats against a particular identifiable third-party, the health provider has a duty to respond by reporting the threat(s) to authorities or the at-risk individual.   The privacy privilege gives way to a duty to protect the threatened person.  Generalized, vague threats toward groups or not directed to an identifiable individual do not breach the privilege.

        Another exception to the physician-patient privilege arises where the patient files a legal claim against a health care provider. Obviously it would be inappropriate for a patient to sue his physician and then handcuff the physician's response by refusing to allow the physician to disclose the content of their relationship.  The statutory exception goes a further step, however, and waives the privacy right of the patient with respect to all medical treaters, so that the patient no longer enjoys a physician-patient confidentiality with any other treater.  A similar waiver comes into play when a personal injury claim is filed against other parties allegedly having committed wrongful conduct.

        The litigation waivers do have limits, however.  While they allow the agents of the litigants to obtain almost unlimited access to past and present care records, the attorneys and agents continue to owe a duty to reasonably protect the privacy of the patient within the bounds of the litigation.  Further, the supervising court may impose additional specific boundaries on the use or dissemination of confidential information (for example, in the case of potentially irrelevant information involving abortion, HIV status, sexual abuse or other particularly  private issues).

        The litigation waiver of privilege is a state law exception to the privilege, and it must be balanced with Federal privacy rights.    As the cases have currently interpreted this interplay of statutory rights, the patient must be notified and consent each time a waiver of the privilege is sought.   Thus, the patient who files a personal injury action may be required to waive his privilege on several occasions during the course of litigation, but she or he preserves the right to by notified and to give consent, throughout.   If the patient were to deny consent, her or his injury action would or could be dismissed; nevertheless, notice and an opportunity to consent must be provided.

        The physician-patient privilege does not apply to autopsy examinations and results, as the privilege dies with the patient and information relating to cause-of-death investigation is considered to be a public concern.  As a result, any person can obtain the results of an autopsy examination through the Freedom Of Information Act.  The privilege also does not apply to examinations performed by so-called "independent" physicians retained by employers, insurers or other adverse parties where the examination is not for the purpose of medical treatment.  Whenever a patient submits to such an "independent" examination, he or she is entitled to a copy of the resulting examination report.