Duhaime's Law Dictionary


Doctor-Patient Privilege Definition:

A proposed prohibition In regards to the disclosure within legal proceedings of communications or records produced privately between a medical doctor and her/his patient, on the expectation of privilege.

Related Terms: Client-Solicitor Privilege

Also known as the physician-privilege as it would be of essential import to psychiatrists, social workers, and psychologists.

In the United States, "The physician-patient privilege is a creature of statute. Many states, although not all, have enacted statutes granting such privilege."1

In Canada, authors Sopinka and Lederman have proposed:

"Notwithstanding the acknowledgement that it is dishonourable and indiscreet for a physician to reveal professional confidences, English courts for almost two centuries have steadfastly maintained that a doctor is compellable to divulge such information in a court of justice (Duchess of Kingston's Trial (1776), 20 How. St. Tr. 537; ... Halls v. Mitchell [1928] S.C.R. 125, at p. 136).

"The reluctance to extend the privilege, which heretofore has been limited to the solicitor-client relationship, may have been based on the feeling that a patient who is obsessed with his illness or injury, in seeking medical treatment, gives no thought to the possibility that any disclosure that he may make to his physician may subsequently be revealed in the courtroom. In other words, the lack of privilege in medical men does not discourage patients from confiding in them, whereas consultation with a solicitor usually implies an awareness of the necessity that the communications be kept in confidence; thus, the policy justification for the protection of solicitor-client communications does not necessarily apply to the doctor-patient relationship (Freedman, 'Medical Privilege' (1954) 32 Can. Bar Rev. 1, at p. 5; McCormick on Evidence (2nd ed., 1972), p. 224; but see Hammelman, 'Professional Privilege: A Comparative Study' (1950), 28 Can. Bar Rev. 750, at p. 753)...."2

doctor patient privilegeThis lack of a consistent approach to the concept of a doctor-patient privilege continues to exacerbate and frustrate the proper conduct of many personal injury actions. In the absence of a statute which covers these communications by privilege, litigants are left to the whim (aka judicial discretion) of the trial judge as to whether or not they're very personal medical records are going to become a matter of record in a public court file. Justice Perras, in DRB v SEB, of the ABQB was frank about the lack of statutory and judicial guidance suggesting that there might be such a privilege in any given case where "common sense and experience" dictate, whatever that means (see ¶8 of the judgment).

Just to demonstrate how unacceptable it is to not have a clear judicial statement on the existence of a doctor-patient privilege, consider that the counseling notes of therapists have often been protected by privilege such as in divorce cases where there may have been pre-litigation reconciliation counseling3, or counseling given to the victims of sexual abuse.

There is one exception which must apply to doctor-patient privilege and that exception was well described by Mr. Justice Coté in M.(N.) v. the Estate of Sheldon Roy Drew and as follows:

"When a plaintiff puts his or her health in issue, the privilege of confidentiality is overridden by the right of the defendant to investigate the claim, including the right to contact and interview the plaintiff's treating physicians for the purpose of obtaining medical information relevant to the nature and extent of the injuries for which the defendant may be responsible. A plaintiff is not entitled to use the cloak of doctor-patient privilege to conceal relevant medical information from the defendant and thus skew the adversary process in his or her favour.

....When a patient brings an action in the public courts putting his health in issue he is deemed to have waived the confidentiality which otherwise attaches to relevant information held by his doctors. Having commenced an action in the courts, he has himself released information concerning his health to the public, and launched a process which will require details of his medical condition to be examined in a public forum. He cannot thereafter expect doctors to whom he has confided relevant private information to maintain the confidence."

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