There are many relationships given special confidentiality protections in the courts: lawyer/client, therapist/patient, spousal, priest/confessor and doctor/patient. Like all of these protected communications, there are many rules that cover how physician confidentiality works when it comes to the criminal courts, including the nature of the information and how it will be used.
Not Everything You Say is Protected
Patient/doctor confidentiality started as a way to get people to feel comfortable telling their doctors private information such as symptoms of STDs so they wouldn’t resist seeking treatment out of embarrassment. And the prosecution couldn’t call your doctor to testify against you by telling the courtroom that you do have the same strain of HPV that a rape victim contracted.
But that doesn’t mean that everything you tell your doctor is protected. In fact, only information directly related to your medical care is considered privileged. As an example, if a woman came into a doctor’s office needing an X-ray for a potentially broken hand bone, the doctor and nurses would not be able to testify to this fact. However, if she said she needed the X-ray because she hurt her knuckle by punching her husband in the face, this information would not be protected and could be used against the woman later.
There Must be a Doctor/Patient Relationship
Just as you can’t go to lunch with your friend who is a lawyer and confess to him that you murdered your wife since he isn’t serving as your lawyer, the same is true for doctors. The only time patient/doctor privilege applies is when you are seeing a medical professional for medical services.
You Must Have an Expectation of Privacy
Information can only be considered confidential if it is given in a way that you expected only the doctor or nurse would hear. In other words, if you tell your doctor that you think you may have given someone HIV, it’s not privileged information if you say it in the middle of a crowded waiting room. The same thing applies if you leave your doctor a message on his home phone, where other members of his family could hear it.
A third party can be present as you share the information, but only if he or she is also subject to the same privacy rules. For example, a nurse, physician’s assistant, translator or doctor in training could be in the room without breaching your privilege, but if you provide the information with a janitor in the room, then the statement is no longer considered confidential. If you aren’t sure if someone is subjected to these privacy laws, you can always ask the individual or doctor.
Doctors are Legally Required to Report Some Things
Different states have different rules regarding what types of injuries doctors are required to report to local law enforcement agencies. Most states require them to report suspected incidents of child abuse and domestic violence, as well as any injuries from gunshot wounds. Many states also require doctors to report injuries from knife wounds.
A Patient Can Waive Their Rights
If a patient believes their medical records or a doctor’s testimony could help exonerate them, they may always choose to waive their right to confidentiality. In these cases, the patient must sign a document detailing exactly what the doctor may disclose to the court and the doctor may not give up any information beyond what the patient agreed to and the document will only apply to the specific legal proceedings in question -not future legal matters.
Courts May Order Doctors to Testify
Doctors may also be required to required to reveal confidential information and even provide copies of a patient’s medical under court orders. This is a more common occurrence in civil courts, but it does sometimes happen in criminal courts as well. As an example, if a doctor was defending himself against a patient who reported that he sexually violated her, the court could rule that he was allowed to use her medical file to defend himself, even if the accuser was against it.
Doctors May Choose to Testify for Incapacitated Patients
If a patient is incapacitated or cannot make decisions rationally, the doctor may disclose information on their behalf. This may be the case if a defendant is unable to stand trial. Similarly, if a victim has died or has been left unable to testify on their own behalf, their doctor can testify as to their medical condition as a result of their injuries. If the victim is not incapacitated, he will generally be able to choose whether or not he feels comfortable waiving his right to have his doctor present this information to the court.
If you have any questions about doctor/patient confidentiality, attorney Peter M. Liss can help. Please call (760) 643-4050 to schedule a free consultation.