A. Except at the request or with the consent of the patient, or as provided in this section, no duly licensed practitioner of any branch of the healing arts shall be permitted to testify in any civil action, respecting any information that he may have acquired in attending, examining or treating the patient in a professional capacity.
B. If the physical or mental condition of the patient is at issue in a civil action, the diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of the practitioner, obtained or formulated as contemporaneously documented during the course of the practitioner's treatment, together with the facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony at the trial of the action. In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. However, no order shall be entered compelling a party to sign a release for medical records from a health care provider unless the health care provider is not located in the Commonwealth or is a federal facility. If an order is issued pursuant to this section, it shall be restricted to the medical records that relate to the physical or mental conditions at issue in the case. No disclosure of diagnosis or treatment plan facts communicated to, or otherwise learned by, such practitioner shall occur if the court determines, upon the request of the patient, that such facts are not relevant to the subject matter involved in the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence. Only diagnosis offered to a reasonable degree of medical probability shall be admissible at trial.
C. This section shall not (i) be construed to repeal or otherwise affect the provisions of § 65.2-607 relating to privileged communications between physicians and surgeons and employees under the Workers' Compensation Act; (ii) apply to information communicated to any such practitioner in an effort unlawfully to procure a narcotic drug, or unlawfully to procure the administration of any such drug; or (iii) prohibit a duly licensed practitioner of the healing arts, or his agents, from disclosing information as required by state or federal law.
D. Neither a lawyer nor anyone acting on the lawyer's behalf shall obtain, in connection with pending or threatened litigation, information concerning a patient from a practitioner of any branch of the healing arts without the consent of the patient, except through discovery pursuant to the Rules of Supreme Court as herein provided. However, the prohibition of this subsection shall not apply to:
1. Communication between a lawyer retained to represent a practitioner of the healing arts, or that lawyer's agent, and that practitioner's employers, partners, agents, servants, employees, co-employees or others for whom, at law, the practitioner is or may be liable or who, at law, are or may be liable for the practitioner's acts or omissions;
2. Information about a patient provided to a lawyer or his agent by a practitioner of the healing arts employed by that lawyer to examine or evaluate the patient in accordance with Rule 4:10 of the Rules of Supreme Court; or
3. Contact between a lawyer or his agent and a nonphysician employee or agent of a practitioner of healing arts for any of the following purposes: (i) scheduling appearances, (ii) requesting a written recitation by the practitioner of handwritten records obtained by the lawyer or his agent from the practitioner, provided the request is made in writing and, if litigation is pending, a copy of the request and the practitioner's response is provided simultaneously to the patient or his attorney, (iii) obtaining information necessary to obtain service upon the practitioner in pending litigation, (iv) determining when records summoned will be provided by the practitioner or his agent, (v) determining what patient records the practitioner possesses in order to summons records in pending litigation, (vi) explaining any summons that the lawyer or his agent caused to be issued and served on the practitioner, (vii) verifying dates the practitioner treated the patient, provided that if litigation is pending the information obtained by the lawyer or his agent is promptly given, in writing, to the patient or his attorney, (viii) determining charges by the practitioner for appearance at a deposition or to testify before any tribunal or administrative body, or (ix) providing to or obtaining from the practitioner directions to a place to which he is or will be summoned to give testimony.
E. A clinical psychologist duly licensed under the provisions of Chapter 36 (§ 54.1-3600 et seq.) of Title 54.1 shall be considered a practitioner of a branch of the healing arts within the meaning of this section.
F. Nothing herein shall prevent a duly licensed practitioner of the healing arts, or his agents, from disclosing any information that he may have acquired in attending, examining or treating a patient in a professional capacity where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of a practitioner's legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law.
Code 1950, § 8-289.1; 1956, c. 446; 1966, c. 673; 1977, c. 617; 1993, c. 556; 1996, cc. 937, 980; 1998, c. 314; 2002, cc. 308, 723; 2005, cc. 649, 692; 2009, c. 714.
Notes of Decisions
Cited in
57
cases (
4 in the last 5 years), 1980–2025 · leading case:
Graham v. Cook, 682 S.E.2d 535 (Va. 2009).
Graham v. Cook, 682 S.E.2d 535 (Va. 2009).
· cites it 30× “Similarly, in Pettus , we held admissible under Code § 8.01-399 a treating cardiologist's *541 testimony that a patient's change in mental status "could have been" a central nervous system problem.”
Pettus v. Gottfried, 606 S.E.2d 819 (Va. 2005).
· cites it 18× “The plaintiff argued that the testimony was speculative, and also contended that the documentation provision of Code § 8.01-399(B) barred its admission. The circuit court overruled the plaintiff's objection, concluding that the testimony was a "complete statement" of Dr.”
Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005).
· cites it 18× “Prior to July 1, 2003, the only statutes governing the admissibility of the testimony of a licensed mental health care provider in a child custody or visitation proceeding were Code § 8.01-399, which applied to any “duly licensed practitioner of any branch of the healing arts,”…”
Wright v. Kaye, 593 S.E.2d 307 (Va. 2004).
· cites it 16× “Krebs’ testimony would violate the patient-physician relationship protected by Code § 8.01-399. Wright’s motion was denied.”
Holmes v. Levine, 639 S.E.2d 235 (Va. 2007).
· cites it 22× “With regard to two other issues that may arise during a retrial, we conclude that the trial court did not err either in overruling the plaintiff's objection that certain testimony of a treating physician did not satisfy the requirements of Code § 8.01-399(B) or in sustaining an…”
King v. Cooley, 650 S.E.2d 523 (Va. 2007).
· cites it 10× “The jury returned a verdict in favor of Cooley for $3,500,000. The trial court reduced the amount of the verdict to $1,650,000 in accordance with Code § 8.”
Fairfax Hosp. v. Curtis, 492 S.E.2d 642 (Va. 1997).
· cites it 10× “Code § 8.01-399, in effect when the wrongful disclosures were made, and which we have described as “merely a rule of evidence,” Pierce v.”
Wiggins v. Fairfax Park Ltd. P'ship, 470 S.E.2d 591 (Va. Ct. App. 1996).
· cites it 12× “01-399(C)(i) provides that Code § 8.01-399 does not repeal or otherwise affect the provisions of Code *442 § 65.”
S. R. v. INOVA Healthcare Servs., 49 Va. Cir. 119 (Fairfax Cir. Ct. 1999).
· cites it 23× “Va. Code § 8.01-399. The remainder of the section delineates exceptions to this general rule and prohibits attorneys engaged in civil proceedings from obtaining such information without the patient’s consent.”
McCauley v. Purdue Pharma, L.P., 224 F. Supp. 2d 1066 (W.D. Va. 2002).
· cites it 17× “Neither a lawyer nor anyone acting on the lawyer’s behalf shall obtain, in connection with pending or threatened litigation, information concerning a patient from a practitioner of any branch of the healing arts without the consent of the patient, except through discovery…”
Dixon v. Sublett, 809 S.E.2d 617 (Va. 2018).
· cites it 2× “Barrett to testify as a treating physician pursuant to Code § 8.01-399. Dr. Barrett evaluated Sublett.”
— Va. Code Ann. § 8.01-399(13) — 1 case
— Va. Code Ann. § 8.01-399(6) — 1 case
— Va. Code Ann. § 8.01-399(A) — 6 cases
Wright v. Kaye, 593 S.E.2d 307 (Va. 2004).
“Krebs’ testimony would violate the patient-physician relationship protected by Code § 8.01-399. Wright’s motion was denied.”
Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005).
“Prior to July 1, 2003, the only statutes governing the admissibility of the testimony of a licensed mental health care provider in a child custody or visitation proceeding were Code § 8.01-399, which applied to any “duly licensed practitioner of any branch of the healing arts,”…”
— Va. Code Ann. § 8.01-399(B) — 26 cases
Graham v. Cook, 682 S.E.2d 535 (Va. 2009).
“Similarly, in Pettus , we held admissible under Code § 8.01-399 a treating cardiologist's *541 testimony that a patient's change in mental status "could have been" a central nervous system problem.”
Pettus v. Gottfried, 606 S.E.2d 819 (Va. 2005).
“The plaintiff argued that the testimony was speculative, and also contended that the documentation provision of Code § 8.01-399(B) barred its admission. The circuit court overruled the plaintiff's objection, concluding that the testimony was a "complete statement" of Dr.”
Holmes v. Levine, 639 S.E.2d 235 (Va. 2007).
“With regard to two other issues that may arise during a retrial, we conclude that the trial court did not err either in overruling the plaintiff's objection that certain testimony of a treating physician did not satisfy the requirements of Code § 8.01-399(B) or in sustaining an…”
King v. Cooley, 650 S.E.2d 523 (Va. 2007).
“The jury returned a verdict in favor of Cooley for $3,500,000. The trial court reduced the amount of the verdict to $1,650,000 in accordance with Code § 8.”
Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005).
“Prior to July 1, 2003, the only statutes governing the admissibility of the testimony of a licensed mental health care provider in a child custody or visitation proceeding were Code § 8.01-399, which applied to any “duly licensed practitioner of any branch of the healing arts,”…”
— Va. Code Ann. § 8.01-399(C)(i) — 1 case
Wiggins v. Fairfax Park Ltd. P'ship, 470 S.E.2d 591 (Va. Ct. App. 1996).
“01-399(C)(i) provides that Code § 8.01-399 does not repeal or otherwise affect the provisions of Code *442 § 65.”
— Va. Code Ann. § 8.01-399(D) — 2 cases
McCauley v. Purdue Pharma, L.P., 224 F. Supp. 2d 1066 (W.D. Va. 2002).
“Neither a lawyer nor anyone acting on the lawyer’s behalf shall obtain, in connection with pending or threatened litigation, information concerning a patient from a practitioner of any branch of the healing arts without the consent of the patient, except through discovery…”
— Va. Code Ann. § 8.01-399(D)(1) — 1 case
Wright v. Kaye, 593 S.E.2d 307 (Va. 2004).
“Krebs’ testimony would violate the patient-physician relationship protected by Code § 8.01-399. Wright’s motion was denied.”
— Va. Code Ann. § 8.01-399(F) — 3 cases
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