Patient-Doctor Privilege Doesn't Cover Doctor's Testimony, Says Judge.

Steve Klearman

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The Reno Gazette Journal reported on a controversial ruling in federal court regarding patient privacy under federal and Nevada law.

The issue arose in a wrongful death case. The plaintiff brought suit against the pharmaceutical company manufacturing the drug taken by her husband to treat his heart condition.

The pharmaceutical company's attorneys requested to interview the decedent's doctor, over the plaintiff's objection.

According to the article, the plaintiff's attorney contended that "only written hospital or medical records should be made available once a lawsuit is filed, not personal communication with a doctor."

However, the judge ruled that Nevada law and HIPAA do not prohibit the defendant's lawyers from doing so. The reasoning? The judge said that filing a lawsuit puts the person's condition at issue, providing an exception to the privilege.

What do the statutes say?

Nevada law generally provides for a doctor-patient privilege: "A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among himself, his doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient's family." NRS 49.225

The exception leading to this controversy comes from NRS 49.245(3), which says that no privilege applies "to written medical or hospital records relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense."

The statute expressly provides an exception for written records, leaving the testimony of the physician arguably subject to privilege. The judge's ruling in this case opens up a defense attorney's ability to speak directly with a plaintiff or decedent's physician, despite explicit reference in the statute for such an interview.