The Hearsay Exception

An exception to the hearsay rule exists for statements made to physicians or other medical personnel{footnote}People v. Winfield, 160 Ill. App. 3d 983, 513 N.E.2d 1032 (1st Dist. 1987)(nurse).

But see Navarro de Cosme v. Hospital Pavia, 922 F.2d 926 (1st Cir. 1991)(social worker’s notes in medical record of patient’s statements admissible); In re Marriage of Dunn, 155 Ill. App. 3d 247, 508 N.E.2d 250 (4th Dist. 1987)(statements to child therapist not admissible under this exception); Mohler v. Blanchette, 106 Ill. App. 3d 545, 435 N.E.2d 1161 (1st Dist. 1982)(statements to patient’s mother for purposes of treatment not admissible under this exception).{/footnote} for the purpose of diagnosis or treatment of the declarant.{footnote} [3177]  FRE 803(4). 

But see Welter v. Bowman Dairy Co., 318 Ill. App. 305, 47 N.E.2d 739 (1st Dist. 1943)(mother’s statements concerning infant’s symptoms admissible under this exception).{/footnote}  The statement need not be directly related to the patient’s physical condition, so long as relates somehow to diagnosis or treatment.{footnote}Wilson v. ZapataOff-Shore Co., 939 F.2d 260 (5th Cir. 1991)(test is whether statements are pertinent to physician in providing treatment); Hastings v. Abernathy Taxi Assn., 16 Ill. App. 3d 671, 306 N.E.2d 498 (1st Dist. 1973)(statement of patient as to current employment relevant to diagnosis).{/footnote}  Statements relevant only to establishing fault for an injury are inadmissible.{footnote} [3179] Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272 (5th Cir. 1991)(details of injury not necessary for treatment but indicating fault).{/footnote}  A patient’s description to a physician of what other physicians have told her about her condition might be excluded as multiple hearsay.{footnote}See O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d Cir. 1978) (issue not decided because prior physicians’ reports admitted).{/footnote}  Similarly, most states exclude statements of past physical condition{footnote}Meany v. United States, 112 F.2d 538 (2d Cir. 1940)(G).{/footnote} except where testified to by physicians as a fact on which they based their opinion.{footnote} [3182] 
{/footnote} 

Party admissions  Note that statements made by a party-opponent can come in as admissions.{footnote}Rogers v. C & NW, 59 Ill. App. 3d 911, 375 N.E.2d 952 (5th Dist. 1978)(statements as well as performance on physical tests held admissions).{/footnote}

Physical Acts  Where a patient demonstrates his or her range of movement or performs a physical test for the physician to demonstrate the injury, such acts will be deemed statements.{footnote}Rogers v. C & NW, 59 Ill. App. 3d 911, 375 N.E.2d 952 (5th Dist. 1978). {/footnote}

Examining Physicians  Statements made to an examining physician [???]{footnote}But see 803(4) and Salzburg at 830 re fed. rule vs. common law.{/footnote}, or one consulted for purposes of litigation are not admissible under this exception,{footnote}Rogers v. C & NW, 59 Ill. App. 3d 911, 375 N.E.2d 952 (5th Dist. 1978); Jensen v. Elgin, Joliet & Eastern Ry., 24 Ill. 2d 383, 182 N.E.2d 211 (1962).{/footnote} but they may be relied on by the physician in form in forming an opinion.{footnote}O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d Cir. 1978) (admissible so long as relied upon for opinions).{/footnote} 

Sex crimes  Some states have special statutes allowing statements by a sexual assault victim to treating medical personnel admissible as an exception to the hearsay rule.  See SEXUAL ASSAULT.

The Privilege

Common law traditionally did not recognize a privilege protecting physician-patient communications.{footnote}United States v. Meagher, 531 F.2d 752 (5th Cir. 1976).

{/footnote}  In those jurisdictions now recognizing the privilege, a patient is privileged to refuse and prevent disclosure of any confidential information obtained by the physician in connection with the provision of medical services.{footnote} [3189]Cal. § 994; Ill. sec. 8-802; La. Rev. Stat. Ann. § 13:3734 (West 1991); Neb. Rev. Stat. § 27-504 (1994);Nev. Rev. Stat. Ann. §§ 49.215 to 49.265 (Michie 1986); Tex. Civ. Code Ann. 4495b, § 5.08 (West. Supp. 1994).
            CHECK Tenn. Code Ann. § 24-1-207 (Supp. 1994) (privilege extends to psychiatrists and persons licensed to practice medicine); Vt. Stat. Ann. tit. 12, § 1612 (Supp. 1994) (privilege extends to persons authorized to practice medicine and mental health professionals, but no specific provision for psychologists).{/footnote}  Privileged information would generally include such things as diagnoses, X-rays, and any documents relating to treatment except for routine admission data (name, date(s) of hospitalization, medical bills, etc.){footnote} [3190]  79 ALR 1131 (G).{/footnote}  The privilege is generally restricted to those physician-patient relationships which are for the purpose of treatment.  Thus, information obtained by a physician appointed or employed in connection with insurance{footnote}McGinty v. Brotherhood of Railway Trainmen, 164 N.W. 249 (Wis. 1917)(G).{/footnote} or litigation to merely examine and diagnose would not be privileged.{footnote} [3192] 
{/footnote}  But see ATTORNEY-CLIENT PRIVILEGE–Defining the Members of the Privileged Relationship. 

Proceedings Where the Privilege Is Inapplicable  The privilege is generally held to be inapplicable to criminal cases,{footnote} [3193]  7 ALR 3d 1458[G]; Cal. 998.
 
Contra  Ill. sec. 8-802 (applicable to criminal cases except homicide, abortion, child neglect and drunken driving).  See also People v. Bickam, 89 Ill. 2d 1, 431 N.E.2d 365 (1982) (grand jury subpoena seeking patient records properly quashed). 
{/footnote} and to a variety of types of civil actions, including medical malpractice actions,{footnote} [3194]  Cal. § 1001; Ill. sec. 8-802.

But see Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 435 N.E.2d 140 (1st Dist. 1982)(this exception only allows disclosure of plaintiff’s records, not those of other patients).{/footnote} personal injury or wrongful death actions brought by the patient or the patient’s estate,{footnote} [3195]  Cal. § 996.{/footnote} commitment,{footnote} [3196]  Ill. sec. 8-802.{/footnote} guardianship or competency proceedings,{footnote} [3197]  Cal. §§ 1004-1005.{/footnote} or proceedings relating to a deceased patient’s estate, will{footnote} [3198]  Ill. sec. 8-802.{/footnote} or conveyance.{footnote} [3199]  Cal. § 1000.{/footnote}  In addition, courts in some states hold the privilege inapplicable whenever the patient’s physical or mental condition is an issue in the case.{footnote} [3200]  Cal. § 996 (only where put into issue by patient); Ill. sec. 8-802; Galindo v. Riddell, 107 Ill. App. 3d 139, 437 N.E.2d 376 (3d Dist. 1982).{/footnote}  In some states, the court has the discretion to set aside the privilege even where the plaintiff has not put his or her medical condition in issue.{footnote} [3201]  Cal. § 999.{/footnote}

Treatment in Connection With a Crime or Fraud  No privilege exists where the treatment was obtained to assist a crime or tort.{footnote} [3202]  Cal. sec. 997.{/footnote} 

Standing to Assert  The privilege is personal in nature and generally only the patient or the patient’s representative may assert it.  Persons representing or acting on behalf of the patient who may assert the privilege include the patient’s conservator, guardian, executor or administrator.  The physician involved has no privilege in his or her own right to assert, although if the patient is not present, the physician is generally obligated to assert the privilege on the patient’s behalf.  See also PRIVILEGE–Standing to Assert.

Unlicensed Physician  Confidential information disclosed to one who is reasonably believed to be a licensed physician has been held privileged, even if the physician was not licensed.{footnote}Arizona & New Mexico Ry v. Clark, 207 F. 817 (9th Cir. 1913)(G); Cal. § 990.{/footnote}

Waiver  Waiver of the physician-patient privilege may take several forms.  See also PRIVILEGE–Waiver.

Voluntary disclosure  Where the patient has disclosed to outside parties the privileged communication, or has testified to such communication, the privilege will be deemed waived.{footnote} [3204]  25 A.L.R. 3d 1401 (G).{/footnote}  Waiver will not be found, however, where disclosure was in connection with the patient’s health benefits.{footnote}Blue Cross v. Superior Court, 61 Cal. App. 3d 798 (1976) (G).{/footnote}

Putting health into issue  In some states, a patient waives the privilege by bringing a claim for bodily injury.{footnote} [3206][CHECK  Illinois law].{/footnote}  If the patient testifies or asks the physician to testify to their treatment, this will be deemed a waiver of the privilege as to all examinations performed on the patient by that doctor.{footnote} [3207]  158 A.L.R. 215 (G); Lissak v. Crocker Estate Co., 119 Cal. 442 (1897) (G); 114 A.L.R. 798 (G).{/footnote}  Some courts hold that any evidence introduced by a party as to their physical condition constitutes a waiver of the privilege{footnote} [3208]  25 A.L.R. 3d 1481 (G).{/footnote}

Court-ordered examination.  Under the federal rules, a court may order a physical examination of a party whose physical condition is at issue in a case.  If the party examined requests a copy of the examining physician’s report or takes the examining physician’s deposition, that party waives the physician-patient privilege with respect to any other examination by any other physician relating to the same physical condition.{footnote}Fed. R. Civ. P. 35(b)(2).

Check 13 L.Ed.2d 992. (Annot.){/footnote}

By contract  Often insurance contracts or insurance applications provide for waiver of the physician-patient privilege.  These are generally upheld but are strictly construed.{footnote} [3210]  54 A.L.R. 412 (G).{/footnote}

Disclosure by health care provider  Though not truly an instance of waiver, where the physician sends the patient for treatment at another facility, the staff of that facility may testify as to the contents of medical records.{footnote} [3211]  169 A.L.R. 678 (g);  Fredrick v. Federal Life Ins. Co., 13 Cal. App. 2d 585 (1936) (G).{/footnote}  Disclosures by an attending physician to staff members assisting in treatment do not constitute waiver.{footnote}Ostrowski v. Mockridge, 65 N.W.2d 185 (Minn. 1954).{/footnote}

Related Articles

DIAGNOSES; BUSINESS RECORDS–"Made in Regular Course of Business"; PHYSICAL CONDITION; PRIVILEGES; PSYCHOTHERAPIST-PATIENT PRIVILEGE.