physician-patient privilege in California

2014Several courts have expressly approved the dictum in Rudnick, supra, 11 Cal.3d 924 that disclosure of the ailment without a disclosure of the patient’s identity does not violate the physician-patient privilege.

1993(Rudnick v. Superior Court, supra, 11 Cal.3d at p. 928 ; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312 [ 260 Cal.Rptr. 122 ].) The question confronting us is whether a mother, as a nonlitigant to a medical malpractice action filed on behalf of her infant son, is able to assert a physician-patient privilege to prevent disclosure of her prenatal medical records.

1996(See, e.g., Newson v. City of Oakland (1974) 37 Cal.App.3d 1050 [ 112 Cal.Rptr. 890 ] [plaintiff asserting claim for lost wages compelled to disclose his failure to file income tax returns]; City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227 [ 231 P.2d 26 , 25 A.L.R.2d 1418 ] [the physician-patient privilege was waived when the plaintiff placed his physical condition in issue by filing an action for personal injuries]; Wilson v. Superior Court (1976) 63 Cal.App.3d 825 [ 134 Cal.Rptr. 130 ] [by initiating an action against her accountant for malpractice with respect to tax advice she

1996(See, e.g., Newson v. City of Oakland (1974) 37 Cal.App.3d 1050 [ 112 Cal.Rptr. 890 ] [plaintiff asserting claim for lost wages compelled to disclose his failure to file income tax returns]; City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227 [ 231 P.2d 26 , 25 A.L.R.2d 1418 ] [the physician-patient privilege was waived when the plaintiff placed his physical condition in issue by filing an action for personal injuries]; Wilson v. Superior Court (1976) 63 Cal.App.3d 825 [ 134 Cal.Rptr. 130 ] [by initiating an action against her accountant for malpractice with respect to tax advice she

2016Unless a patient ... is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends." To address this issue, the Commission explained, Evidence Code section 1014"establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege." These Law Revision Commission Comments, according to our Supreme Court, constitute the Legislature's acknowledgment "that the unique *604 nature of psychotherapeutic treatment re

2016Unless a patient ... is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends." To address this issue, the Commission explained, Evidence Code section 1014"establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege." These Law Revision Commission Comments, according to our Supreme Court, constitute the Legislature's acknowledgment "that the unique *604 nature of psychotherapeutic treatment re

2014(Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678-679 [ 156 Cal.Rptr. 55 ].) We do not agree with real parties in interest’s argument that petitioner waived the physician-patient privilege by failing to raise it in opposition to the request for production.

2014(Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678-679 [ 156 Cal.Rptr. 55 ].) We do not agree with real parties in interest’s argument that petitioner waived the physician-patient privilege by failing to raise it in opposition to the request for production.

2016(See also Koshman v. Superior Court (1980) 111 Cal.App.3d 294, 298 [holding that the patient-litigant exception to the physician-patient privilege did not apply in custody dispute where father, who had moved to modify a custody order on the ground that mother was hospitalized due to an overdose of narcotics, sought medical records related to that hospitalization, as mother did not tender the issue of her alleged overdose].) Because David does not explain why the trial court’s finding is erroneous, he has failed to meet his burden of showing an abuse of discretion.

2009(Koshman, supra, 111 Cal.App.3d at p. 299, fn. 5 .) The Legislature, however, has not created such an exception in the almost three decades since Koshman was decided. 7 We do not reach the issue of whether father’s right to privacy protects Dr. Morrison’s records because we hold that those records are protected by the physician-patient privilege.

2014Code, §§ 912, 993, 994; cf. Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 602-603 [ 162 Cal.Rptr. 724 ] [psychotherapist not holder of psychotherapist-patient privilege].) Besides, petitioner’s objection on privacy grounds was sufficient since the physician-patient privilege and the constitutional right of privacy in medical records are “closely related protections against public disclosure of private information.” (Binder v. Superior Court (1987) 196 Cal.App.3d 893, 899 [ 242 Cal.Rptr. 231 ] (Binder).) Real parties in interest interpret the physician-patient privilege as excluding ph

2014Code, §§ 912, 993, 994; cf. Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 602-603 [ 162 Cal.Rptr. 724 ] [psychotherapist not holder of psychotherapist-patient privilege].) Besides, petitioner’s objection on privacy grounds was sufficient since the physician-patient privilege and the constitutional right of privacy in medical records are “closely related protections against public disclosure of private information.” (Binder v. Superior Court (1987) 196 Cal.App.3d 893, 899 [ 242 Cal.Rptr. 231 ] (Binder).) Real parties in interest interpret the physician-patient privilege as excluding ph

2010Proc., § 1985.3, subd. (g)), but the court has authority to consider the motion even if brought after the date for production. ( Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312-1313 [ 260 Cal.Rptr. 122 ].) In the present case, if the juvenile court had heard the motion to quash, it would have been called upon to make the same rulings on the substantive evidentiary objections that father ultimately made at the December 4 adjudication hearing: the medical records were protected by the physician-patient privilege and they were hearsay.

2010Proc., § 1985.3, subd. (g)), but the court has authority to consider the motion even if brought after the date for production. ( Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312-1313 [ 260 Cal.Rptr. 122 ].) In the present case, if the juvenile court had heard the motion to quash, it would have been called upon to make the same rulings on the substantive evidentiary objections that father ultimately made at the December 4 adjudication hearing: the medical records were protected by the physician-patient privilege and they were hearsay.

2019Instead, the District Attorney relies almost exclusively on Jones v. Superior Court (1981) 119 Cal.App.3d 534 , in which the plaintiff's mother asserted the physician-patient privilege in response to third-party discovery arising from the daughter's lawsuit against pharmaceutical companies for birth defects allegedly caused by the mother's ingestion of the drug DES while pregnant.

2017Code, § 1016 if narrowly drawn did not violate right to privacy] & Jones v. Superior Court, supra, 119 Cal.App.3d at p. 550 [state’s interest in ascertaining truth in legal proceedings was substantial enough to compel disclosure of confidential information such as psychotherapy-patient communications].) Stritzinger specifically considers the statutory exception to the psychotherapist-patient privilege in regard to mandatory reporting obligations under CANRA, which states: “Neither the physician-patient privilege nor the *357 psychotherapist-privilege applies to information reported pursuant to

2022But a “plaintiff seeking to recover damages arising out of a particular injury cannot claim the physician-patient privilege with respect to that injury because plaintiff’s action tenders the issue.” (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1149 .) Because issuing a subpoena is conduct in the defense of a “civil action,” it was protected activity qualifying as the first step of the anti- SLAPP motion.

2022“A plaintiff seeking to recover damages arising out of a particular injury cannot claim the physician- patient privilege with respect to that injury because plaintiff’s action tenders the issue.” (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1149 .) Taft claims the June 15th subpoena was not valid because he was not served notice of that subpoena.

2013(Accord, Blue Cross v. Superior Court (1976) 61 Cal.App.3d 798, 800-802 [ 132 Cal.Rptr. 635 ] [explaining purpose of identical language in Evid.

2013(Accord, Blue Cross v. Superior Court (1976) 61 Cal.App.3d 798, 800-802 [ 132 Cal.Rptr. 635 ] [explaining purpose of identical language in Evid.

2019Unlike the physician-patient privilege, for example, the psychotherapist-patient privilege can be invoked in a criminal proceeding.' " (Nielsen v. Superior Court (1997) 55 Cal.App.4th 1150, 1154 (Nielsen); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1091 (San Diego Trolley) ["unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions"]; Wharton, supra, 53 Cal.3d at pp. 551-552.) "The privilege is also considered 'paramount to prosecution,' generally outweighing the People's interest

2016Penal Code section 11171.2, for example, specifies that its exception for information reported pursuant to the Child Abuse and Neglect Reporting Act applies to both these privileges; however, the Legislature has created a criminal-proceeding exception to physician-patient privilege, but "has not done the same for the psychotherapist-patient privilege." ( Menendez v. Superior Court (1992) 3 Cal.4th 435 , 456, fn. 18, 11 Cal.Rptr.2d 92 , 834 P.2d 786 .) Section 2225 itself precludes any implication that its exception to the physician-patient privilege was intended by the Legislature to create an

2014This narrow interpretation is contrary to the plain language of Evidence Code section 992, which defines “confidential communication” to include not only information disclosed by the patient but also “a diagnosis made and the advice given by the physician.” (See Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 288-289 [ 67 Cal.Rptr. 568 ] [physician orders within scope of privilege].) 5 But the physician-patient privilege will not be violated by the limited production of redacted postoperative orders in this case.

2014This narrow interpretation is contrary to the plain language of Evidence Code section 992, which defines “confidential communication” to include not only information disclosed by the patient but also “a diagnosis made and the advice given by the physician.” (See Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 288-289 [ 67 Cal.Rptr. 568 ] [physician orders within scope of privilege].) 5 But the physician-patient privilege will not be violated by the limited production of redacted postoperative orders in this case.

2016Unless a patient ... is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends." To address this issue, the Commission explained, Evidence Code section 1014"establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege." These Law Revision Commission Comments, according to our Supreme Court, constitute the Legislature's acknowledgment "that the unique *604 nature of psychotherapeutic treatment re

2016Unless a patient ... is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends." To address this issue, the Commission explained, Evidence Code section 1014"establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege." These Law Revision Commission Comments, according to our Supreme Court, constitute the Legislature's acknowledgment "that the unique *604 nature of psychotherapeutic treatment re

2014III The right to privacy protects the “ ‘individual’s reasonable expectation of privacy against a serious invasion.’ ” (Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 307 [ 125 Cal.Rptr.3d 169 ] (Los Angeles Gay & Lesbian Center), quoting Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 [ 53 Cal.Rptr.3d 513 , 150 P.3d 198 ].) “If the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing interests, which include the interest of the requesting party, fairness to litigants in co

2011Co. v. Superior Court, supra, 31 Cal.3d at pp. 787-790; see Pioneer, supra, 40 Cal.4th at p. 364 .) Evidence Code section 912, subdivision (a) provides that a person’s right to claim a statutory privilege, including the physician-patient privilege, is “waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.

2009The Physician-patient Privilege “We begin with the premise that there can be no discovery of materials which are privileged.” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 925 [ 22 Cal.Rptr.2d 839 ] (Palay).) The physician-patient privilege is codified in Evidence Code section 994, 2 which provides, in part, that “[sjubject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician if the privilege is claimed

2009The Physician-patient Privilege “We begin with the premise that there can be no discovery of materials which are privileged.” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 925 [ 22 Cal.Rptr.2d 839 ] (Palay).) The physician-patient privilege is codified in Evidence Code section 994, 2 which provides, in part, that “[sjubject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician if the privilege is claimed

1997(People v. Lines (1975) 13 Cal.3d 500, 511-513 [ 119 Cal.Rptr. 225 , 531 P.2d 793 ].) Although the photographs were privileged and the trial court erroneously admitted them into evidence, we are convinced it is not reasonably probable a jury would have rendered a more favorable verdict even if the evidence had been excluded.

1997(People v. Lines (1975) 13 Cal.3d 500, 511-513 [ 119 Cal.Rptr. 225 , 531 P.2d 793 ].) Although the photographs were privileged and the trial court erroneously admitted them into evidence, we are convinced it is not reasonably probable a jury would have rendered a more favorable verdict even if the evidence had been excluded.

1983While the purpose of the attorney-client privilege is to preserve and enhance the confidential relationship between attorney and client, the purpose of the physician-patient privilege is “to preclude the humiliation of the patient that might follow disclosure of his ailments.” (City & County of S. F. v. Superior Court, supra, 37 Cal.2d at p. 232 ; accord Moreno v. New Guadalupe Mining Co. (1917) 35 Cal.App. 744 [ 170 P. 1088 ].) When the patient himself discloses his ailments by bringing a personal injury action in which they are in issue, he breaks the seal of privacy protected by the privile

1983While the purpose of the attorney-client privilege is to preserve and enhance the confidential relationship between attorney and client, the purpose of the physician-patient privilege is “to preclude the humiliation of the patient that might follow disclosure of his ailments.” (City & County of S. F. v. Superior Court, supra, 37 Cal.2d at p. 232 ; accord Moreno v. New Guadalupe Mining Co. (1917) 35 Cal.App. 744 [ 170 P. 1088 ].) When the patient himself discloses his ailments by bringing a personal injury action in which they are in issue, he breaks the seal of privacy protected by the privile

2016The trial court's order in that case had held that compelling disclosure was proper under Evidence Code section 999, which provides an exception to the physician-patient privilege. 14 ( City of Alhambra v. Superior Court, supra, 110 Cal.App.3d at p. 519 , 168 Cal.Rptr. 49 .) But the Court of Appeal held that the cited exception cannot be applied to the psychotherapist-patient privilege: " Section 999 is applicable only to article 6 of division 8, chapter 4 of the Evidence Code, the physician-patient privilege.

2016The trial court's order in that case had held that compelling disclosure was proper under Evidence Code section 999, which provides an exception to the physician-patient privilege. 14 ( City of Alhambra v. Superior Court, supra, 110 Cal.App.3d at p. 519 , 168 Cal.Rptr. 49 .) But the Court of Appeal held that the cited exception cannot be applied to the psychotherapist-patient privilege: " Section 999 is applicable only to article 6 of division 8, chapter 4 of the Evidence Code, the physician-patient privilege.

2019Unlike the physician-patient privilege, for example, the psychotherapist-patient privilege can be invoked in a criminal proceeding.' " (Nielsen v. Superior Court (1997) 55 Cal.App.4th 1150, 1154 (Nielsen); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1091 (San Diego Trolley) ["unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions"]; Wharton, supra, 53 Cal.3d at pp. 551-552.) "The privilege is also considered 'paramount to prosecution,' generally outweighing the People's interest

2019Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052 .) "The waiver of an important right must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences." (Roberts v. Superior Court (1973) 9 Cal.3d 330, 343 (Roberts).) "Thus, any waiver must be narrowly construed and limited to matters 'as to which, based upon [the patient's] disclosures, it can reasonably be said [the patient] no longer retains a privacy interest.' " (San Diego Trolley, supra, 87 Cal.App.4th at p. 1092 .) Even when there has been a "waiver of a statutory privilege, a

2019Unlike the physician-patient privilege, for example, the psychotherapist-patient privilege can be invoked in a criminal proceeding.' " (Nielsen v. Superior Court (1997) 55 Cal.App.4th 1150, 1154 (Nielsen); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1091 (San Diego Trolley) ["unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions"]; Wharton, supra, 53 Cal.3d at pp. 551-552.) "The privilege is also considered 'paramount to prosecution,' generally outweighing the People's interest

2019(Nielsen, supra, 55 Cal.App.4th at p. 1154 ; San Diego Trolley, supra, 87 Cal.App.4th at p. 1091 ; Wharton, supra, 53 Cal.3d at pp. 551-552.) And, more significantly, the Jones plaintiff's mother disclosed significantly more information about her physician-patient relationship— including "conversations with her physician [and] pharmacist" (Jones, supra, 119 Cal.App.3d at p. 541 )—than Fish disclosed about his psychotherapist-patient relationship.

2019Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052 .) "The waiver of an important right must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences." (Roberts v. Superior Court (1973) 9 Cal.3d 330, 343 (Roberts).) "Thus, any waiver must be narrowly construed and limited to matters 'as to which, based upon [the patient's] disclosures, it can reasonably be said [the patient] no longer retains a privacy interest.' " (San Diego Trolley, supra, 87 Cal.App.4th at p. 1092 .) Even when there has been a "waiver of a statutory privilege, a

2015Furthermore, “‘[t]he waiver of an important right must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences.’ (Roberts v. Superior Court, supra, 9 Cal.3d at p. 343 , italics added.)” 6 (San Diego Trolley, Inc. v. Superior Court, supra, 87 Cal.App.4th at p. 1092 .) Although father was present at adjudication hearing at which the Department’s counsel stated that the Department just received documents regarding father’s mental health issues, there is no evidence that father himself, as holder of the privilege, had “sufficient awarenes

2016In support, he cites Los Angeles Gay and Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 309 , in which the Court of Appeal explained that a waiver of the physician-patient privilege “occurs if the person holding the privilege, without coercion, discloses a significant portion of the communication or has consented to disclosure[,]” and People v. Combs (2004) 34 Cal.4th 821, 864 , in which our Supreme Court held that a defendant waived the psychotherapist-patient privilege by placing his mental state in issue, thereby allowing the prosecutor to call as a rebuttal witness a psychiat

2014III The right to privacy protects the “ ‘individual’s reasonable expectation of privacy against a serious invasion.’ ” (Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 307 [ 125 Cal.Rptr.3d 169 ] (Los Angeles Gay & Lesbian Center), quoting Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 [ 53 Cal.Rptr.3d 513 , 150 P.3d 198 ].) “If the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing interests, which include the interest of the requesting party, fairness to litigants in co

2016It is not the function of the judiciary to create such an exception." ( Ibid. ) So too, Evidence Code section 1007 provides that the physician-patient privilege does not apply in proceedings to determine whether a right or license should be revoked, suspended, or conditioned; but the Code includes no analogous exception to the psychotherapist-patient privilege for such proceedings. 15 *605 Evidence Code section 910 provides that "the provisions of this division [relating to privileges] apply in all proceedings"; and section 901 defines "proceedings" to include "any ... investigation ... in whi

2016It is not the function of the judiciary to create such an exception." ( Ibid. ) So too, Evidence Code section 1007 provides that the physician-patient privilege does not apply in proceedings to determine whether a right or license should be revoked, suspended, or conditioned; but the Code includes no analogous exception to the psychotherapist-patient privilege for such proceedings. 15 *605 Evidence Code section 910 provides that "the provisions of this division [relating to privileges] apply in all proceedings"; and section 901 defines "proceedings" to include "any ... investigation ... in whi

1984(Compare Britt v. Superior Court, supra, 20 Cal.3d 844 ; Church of Hakeem, Inc. v. Superior Court (1980) 110 Cal. App.3d 384 [ 168 Cal. Rptr. 13 ].) Nor does disclosure invade an established privilege, such as the physician-patient privilege ( Britt, supra, at pp. 862-864 ) or the psychotherapist-patient privilege ( In re Lifschutz, supra, 2 Cal.3d at pp. 429-435).

1984(Compare Britt v. Superior Court, supra, 20 Cal.3d 844; Church of Hakeem, Inc. v. Superior Court (1980) 110 Cal.App.3d 384 [ 168 Cal.Rptr. 13 ].) Nor does disclosure invade an established privilege, such as the physician-patient privilege (Britt, supra, at pp. 862-864 ) or the psychotherapist-patient privilege (In re Lifschutz, supra, 2 Cal.3d at pp. 429-435).

1988I therefore conclude the privilege was not waived. *446 The physician-patient privilege is, however, an aspect of the patient's constitutional right to privacy. ( See People v. Stritzinger (1983) 34 Cal.3d 505, 511 [ 194 Cal. Rptr. 431 , 668 P.2d 738 ]; In re Lifschutz, supra, 2 Cal.3d at pp. 431-432.) As discussed, ante, the state has demonstrated a compelling interest in this medical data, although not in the identities of the patients.

1988I therefore conclude the privilege was not waived. *446 The physician-patient privilege is, however, an aspect of the patient's constitutional right to privacy. ( See People v. Stritzinger (1983) 34 Cal.3d 505, 511 [ 194 Cal. Rptr. 431 , 668 P.2d 738 ]; In re Lifschutz, supra, 2 Cal.3d at pp. 431-432.) As discussed, ante, the state has demonstrated a compelling interest in this medical data, although not in the identities of the patients.