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Univ. of South Carolina School of Law

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Friday, December 14, 2012

Not The Issue: Supreme Court Of Mississippi Finds Defendants Didn't Waive Physician-Patient Privilege

Mississippi Rule of Evidence 503(b) provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing (A) knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient, or (B) confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

While a party can waive the protection of this physician-patient privilege to the extent that he puts his medical condition at issue, as the recent opinion of the Supreme Court of Mississippi in Powell v. McLain, 2012 WL 6200432 (Miss. 2012), makes clear, a defendant is unlikely to engage in such waiver.

McLain arose

from an automobile accident in which Plaintiff Sheila McLain collided with the rear of a parked tractor-trailer. The tractor-trailer was owned by Continental Rails & Excavating and was operated by Robert Powell, a Continental employee, at the time of the accident. According to McLain, the tractor-trailer was parked in a lane of travel without any warning devices in place. McLain alleges that Powell was taking a nap in the truck at the time of the accident, but Powell testified in a deposition that he had just stopped the truck and was in the process of placing warning devices when the accident occurred.

McLain thereafter

brought suit against both Continental and Powell, alleging that she had sustained various injuries as a result of the accident. During litigation, discovery disputes arose between the parties. Specifically, McLain requested...medical records related to Powell's drug and alcohol tests taken as part of his employment with Continental over the past three years

In response to this and other discovery requests, the trial court required the defendants to produce a privilege log of all documents withheld. The defendants thereafter appealed, claiming, inter alia, the court's order was "impermissibly vague, overly broad, and unduly burdensome.

The Supreme Court of Mississippi agreed and said the following regarding the request for medical documents:

As to claims of medical privilege, Rule of 503 of the Mississippi Rules of Evidence provides, in pertinent part, that "a patient has a right to refuse to disclose and to prevent any other person from disclosing...knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient." The rules also provide that a party's medical privilege is waived to the extent he puts his medical condition at issue. Obviously, this defendant did not place his medical condition at issue and he did not waive his right to medical privilege, even as to relevant medical information....

To be clear, a party does not waive his medical privilege by virtue of being named a defendant to a lawsuit, and the circuit court cannot compel a party to produce documents covered by medical privilege.

Of course, a defendant can sometimes put his medical condition at issue by, for instance, asserting a counterclaim or a crossclaim. But the Supreme Court of Mississippi is correct that simply being named a defendant does not vitiate the physician-patient privilege.

-CM

 

http://lawprofessors.typepad.com/evidenceprof/2012/12/mississippi-rule-of-evidence-503bprovides-that-a-patient-has-a-privilege-to-refuse-to-disclose-and-to-prevent-any-other.html

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