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Privileged Information

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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