doctor-patient privilege

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Doctor-patient privilege, also known as physician-patient privilege, refers to a confidential communication between the doctor and the patient that receives protection from disclosure.

Common law does not recognize doctor-patient privilege, but the privilege exists in all jurisdictions through statutory language. However, legislatures have created many statutory exceptions to the privilege such that the ability to protect confidential information has greatly diminished. The Federal Rules of Evidence Rule 501 affords the privilege to a psychotherapist and patient relationship but contains no general doctor-patient privilege.

The statutorily created privilege between the physician and the patient ensures that the patient can fully disclose confidential information regarding one’s illness without the fear of compromising one’s privacy. The courts are split on how far the privilege should reach — some favor a liberal interpretation while others view that the statutory language should be given a narrow reading.

A confidential communication between the physician and the patient is afforded privilege only when the communication was made in the course of a professional relationship. The information that the physician gathers about the patient’s condition in the absence of a professional relationship is not given protection from disclosure.  

Where there is no statutory doctor-patient privilege, confidentiality may be implied from contractual language between the physician and the patient. When a patient implicitly waives one’s doctor-patient privilege by filing a lawsuit based on one’s medical health, the patient only waives the privilege to the matters that are causally relevant to the patient’s medical condition at issue.        

Doctor-patient privilege differs from doctor-patient confidentiality, which protects a patient’s medical records and information outside of the context of a lawsuit. This protection is granted by state and federal statutes, such as the HIPAA Privacy Act.

Illustrative Cases:

See e.g., In re Bess Z., 27 A.D.3d 568  N.Y.S.2d 140 (N.Y. App. Div. 2006); Equal Employment Opportunity Commission v. Peters' Bakery (N.D. Cal. 2014)

[Last updated in October of 2022 by the Wex Definitions Team]