There are some societal goals that are considered so important that the law gives them extra protection. The ability of a penitent person to confess to a clergy member or of spouses to speak honestly with each other are examples of relationships that we so much want to preserve that we actually create a mechanism to frustrate the process of fact-finding in a legal case, to block the entry into evidence of facts that may actually be very important because of how those facts came to be known.

The therapeutic interaction between a doctor and a patient is another of these special relationships. The doctor-patient privilege therefore exists because we want to favor frank and open communication so that doctors can have access to information that they need to treat their patients effectively. This was originally largely a public health issue related to matters like venereal disease. The goal was that patients not be so ashamed to tell their doctors something embarrassing that could be used in a legal proceeding like a divorce that they would not get treated and would then spread the infection further. However, it now applies to all medical care for all purposes.

It is not the same as doctor-patient confidentiality. That is a common law duty, now also codified into state statutes, the Public Health Law and HIPAA, to generally maintain the patient’s privacy. The doctor-patient privilege is limited to legal proceedings. It is an actual bar to the physician producing records and giving testimony about matters related to the patient’s treatment and condition unless the patient agrees.

The patient holds the privilege – which means that the patient is the only one who can waive it – but in a legal proceeding either the doctor or the patient may assert it.

Now, let’s look at the elements of the privilege. Obviously, there must have been a physician-patient relationship at the time of the communication with the doctor for the privilege to be able to be invoked.

Only information actually needed for medical care is shielded. Extraneous facts are not, even if they are part of the same statement. Therefore, for example, if someone comes into the ER with a large scalp laceration and tells the doctor, “The clerk hit me with a bat when I tried to rob the bodega on 4th Street”, that the injury was due to being hit with a bat is privileged because the doctor needs it to determine proper medical care but the part of the statement that relates to having attempted a robbery at certain site is irrelevant to medical care and so is not shielded and is fully admissible later at trial.

The communication with the doctor must also have been made in the expectation of privacy by the patient:

The communication must have been made in a way that only the doctor would see or hear. Therefore, speaking in an examination room while the door is open in a busy office or leaving a voicemail on a doctor’s home phone that other family members have access to would defeat the privilege.

The presence of a third person other than someone working directly as an agent of the doctor, such as a personal PA or a personal secretary, rather than just a member of hospital staff, or someone who is acting only as a needed facilitator for the communication, such as a sign language translator, breaches the privilege. It does not matter if the third person is even a spouse or parent of the patient – their mere presence ends any expectation by the patient that what was revealed will be just between themselves and the doctor.

At common law the privilege survives death and this is generally the case under most state statutes, although some states do limit this partially.

The privilege is not, however, absolute…It can be limited by statutes, such as those that mandate the reporting of such issues as gunshot wounds, abuse and sexually-transmitted diseases, allowing the doctor to then also produce records and testify about these issues in court. It can also be specifically overridden by court order.

For example, consider a doctor who needs to release her records in her own defense in a lawsuit alleging that she failed to warn the plaintiff of a threat as required by a Tarasoff law. In that setting, the refusal of the patient to waive the privilege should stop the case in its tracks because the plaintiff, who has no standing to effectuate the release of the patient’s private records, cannot get any evidence against the doctor to use in court and the doctor cannot proffer any evidence in her own behalf in the case. Nevertheless, we know that these cases do proceed. The way that this occurs is that the plaintiff serves Discovery demands on the doctor, the doctor then asserts privilege and the plaintiff then makes a Motion to Compel and the matter lands in front of a judge who inspects the records in camera (privately and off the record) and then hears the arguments from the plaintiff and the defendant doctor and possibly the patient as well and finally issues an Order either denying or permitting disclosure, in whole or in part. If release is granted this then protects the doctor from liability to the patient for revealing facts about the patient’s treatment or condition.

However, those limits on the privilege should be seen as just what they are: very narrow. The statutes are very specific in what they cover and courts have tremendous respect for the upholding of the privilege and will breach it only in the most limited ways.

What is critical to take from this, though, is that even if the doctor is absolutely certain that their records will fully support them in an action, they may not release them until a proper Order to do so has come from the bench.

Up until this point we have been discussing legal proceedings in which the patient wants the doctor to remain silent. However, in the case of a medical malpractice action the patient wants exactly the opposite – they want their medical records to be in evidence and they want the doctor to be able to testify about the treatment and their condition because they believe that they will thereby prove their case. In this situation, the patient both de facto, by putting their medical condition in issue, and explicitly, by executing authorizations for the release of their records, has waived the privilege and, if the patient has died, their legally-appointed representative has done so. However, it is essential to again note that even if the doctor is certain that their records and testimony will demolish the plaintiff’s case, they cannot reveal anything until the waivers are in.

So, having looked at the predicates of the privilege, let’s look at how it played out in a very high-profile case, that of Aurora shooter James Holmes.

He sent a package, presumed to contain his plans for the massacre, to a psychiatrist who had previously treated him. The doctor actually never received this but the essential issue was whether its contents were shielded by privilege.

The initial matter the court therefore looked at was whether a doctor-patient relationship even existed at the time. The first issue was whether the doctor had only dealt with Holmes in an administrative capacity, in her role of being the medical director of the Threat Assessment Team on campus. This would not underpin a privilege claim because a doctor-patient relationship would not exist. However, it was determined that she had actually treated him personally. The prosecution then maintained that the relationship had ended at his last contact with the doctor, a month before he mailed the package, but the defense maintained that he was still her patient when he mailed it. In keeping with the preference of courts to uphold privilege the court found for the defense.

The contents of the package could then only be privileged if they were material intended by Holmes to show his intentions and state of mind, sent to a doctor treating him for mental health issues. The prosecution would only be able to defeat that by demonstrating that he meant it for some purpose other than to reveal his mental state to his treating psychiatrist, which they were unable to do in the context of the case.

The next issue was then the expectation of privacy. In this regard, Holmes showed the material to no one else and sealed the envelope and addressed it to the doctor personally and sent it through a system (the post office to the campus mail room) that does not typically open packages. It therefore met the criterion of his expectation of it being a communication limited to the doctor and himself. This also goes back to the fact that he saw the doctor as her personal patient because if she had only evaluated him as part of her work with the Threat Assessment Team then sending material evincing a threat to someone known to be a member of a group set up specifically to evaluate potential threats and disclose to the police the ones that are deemed serious would be evidence that he could have had no expectation that his communication, even if he intended it as part of his treatment, would be definitely kept confidential.

The contents of the package therefore met all the criteria for invocation of the doctor-patient privilege and the court therefore held that the prosecution could not have access to them.

Interestingly though, they were then actually made available to the prosecution through the final issue that we discussed: a waiver. When he chose to enter a plea of not guilty by reason of insanity Holmes then came under a state statute that once a defendant pleads such that any evidence related to mental illness is no longer protected and is covered under an evidence waiver.

In other words, even in a complex and controversial case the elements of the privilege – the doctor-patient relationship, the material itself being part of diagnosis or treatment, the patient’s expectation of privacy and any waivers – still applied as expected,.

Dr. Medlaw is a physician and medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.