Historically, Anglo-American law did not recognize a physician-patient
privilege. Unlike priests and attorneys, physicians could be examined in court,
and their records were treated no differently from the records of other
businesses. Most states, however, have passed laws that create a limited legal
privilege for medical information. In general, a person's medical records may
be used in court if that person's medical condition is at issue. A physician
sued for medical malpractice must use the plaintiff's records to defend the
care rendered the plaintiff. In this situation, the medical records will be
admissible in court if they meet the test for business records.
Legal records are much more protected than medical records. If a physician is
sued for civil damages or prosecuted for criminal misconduct, certain types of
information can be protected from discovery by opposing counsel under the
attorney-client privilege and the attorney work product doctrines. These
doctrines protect what clients tell attorneys and what attorneys find out when
investigating a lawsuit for the client.
Legal privilege, also known as the attorney-client privilege, is limited to
communications between attorney and client made in anticipation of litigation.
Both of these conditions--communication and anticipation of litigation--must be
met if a document is to be privileged. While the legal basis for privilege is
different in criminal law and civil law, the idea of communication is much the
same.
To be legally privileged, a communication must pass directly from one party to
the other, and it must pass intentionally. It may be written, spoken, signed,
or otherwise communicated. It may not involve the actual witnessing of the
illegal event. For example, one of the traditional privileges in criminal law
is the protection of communications between husband and wife. This privilege is
intended to preserve domestic relations. It prevents people from testifying
about information they told to their spouse. If a husband is told by his wife
that she has been filing fraudulent Medicare claims, he may not testify if she
is prosecuted for criminal Medicare fraud. However, if he actually watches her
filling out fraudulent forms on their home computer, he may be compelled to
testify as to his observations.
The threat of litigation need be only potential, not imminent. For example, if
a physician retained an attorney to determine if a joint venture was legal, the
new information developed through the attorney's investigation would be
privileged under the work product doctrine. The attorney's advice would be
privileged under the attorney-client privilege. These protections apply only to
what happens after the attorney is involved. The physician cannot make
otherwise unprivileged information confidential just by telling it to an
attorney. The attorney must be involved in the exercise of legal judgment for
the privilege to apply. The attorney-client privilege is designed to encourage
individuals to consult with attorneys to avoid breaking the law.
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