In general
• Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications . . .
(2) Physicians, as to matters communicated to them by patients, in the course of their professional business, or advice given in such cases.
• Despite the apparent prohibitory language of the physician-patient privilege statute, it does not create an absolute incompetency, but rather a privilege for the benefit of the patient.
Terre Haute Reg’l Hosp., Inc. v. Trueblood, 600 N.E.2d 1358, 1360 (Ind. 1992)
• [W]hen a patient has not waived the privilege, the physician is required to remain silent as to the physician-patient communications contemplated by the privilege statute
State v. Jaggers, 506 N.E.2d 832, 834 (Ind. Ct. App. 1987)
• It is the well established rule, and we need not cite any authority, that the doctor-patient privilege belongs to the patient only which he may waive. Also, the privilege extends only to those things of a confidential nature.
Summerlin v. State, 271 N.E.2d 411, 413 (Ind. 1971)
• Federal HIPAA provisions overlap with general Doctor-Patient Privilege law.
Purpose of privilege
• [T]he purpose of the privilege “is to insure that the patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor.
Terre Haute Regl. Hosp., Inc. v. Trueblood, 600 N.E.2d 1358, 1360 (Ind. 1992)
• We should keep in mind that the objective of the privilege in such cases is namely to inspire full and complete disclosure of knowledge pertinent and necessary to a trustful and proper relationship in such cases. Where that objective is not served and the privilege is used to conceal the commission of a crime, it has no social value and serves no public purpose but in fact is turned into a shield to the criminal and the commission of the crime.
Green v. State, 274 N.E.2d 267, 273 (Ind. 1971)
• The statute, however, is intended to foreclose disclosure of patient information where the method of treatment is associated closely with the nature of the ailment so that the disclosure itself will reveal the ailment.
Terre Haute Regl. Hosp., Inc. v. Trueblood, 600 N.E.2d 1358, 1360 (Ind. 1992)
Statutory exceptions
• The physician-patient privilege is inapplicable in cases involving allegations of child abuse or neglect.
• The privileged communication between:
(1) a husband and wife;
(2) a health care provider and the health care provider's patient;
(3) a:
(A) licensed social worker;
(B) licensed clinical social worker;
(C) licensed marriage and family therapist;
(D) licensed mental health counselor;
(E) licensed addiction counselor; or
(F) licensed clinical addiction counselor;
and a client of any of the professionals described in clauses (A) through (F);
(4) a school counselor and a student; or
(5) a school psychologist and a student;
is not a ground for excluding evidence in any judicial proceeding resulting from a report of a child who may be a victim of child abuse or neglect or relating to the subject matter of the report or failing to report as required by IC 31-33.
See also Hayes v. State, 667 N.E.2d 222, 225 (Ind. Ct. App. 1996)
• Also, there is no patient-physician privilege in circumstances where there is a blood draw and law enforcement requests the results (for example, DUI cases)]
• For the purposes of this chapter, IC 9-30-5, or IC 9-30-9:
(1) the privileges arising from a patient-physician relationship do not apply to the samples, test results, or testimony described in this section; and
(2) samples, test results, and testimony may be admitted in a proceeding in accordance with the applicable rules of evidence.
• The physician-patient privilege is inapplicable in cases involving workmen’s compensation
Communications
• Communications that are not necessary for diagnosis and treatment are not protected from disclosure.
See Terre Haute Reg’l Hosp., Inc. v. Trueblood, 600 N.E.2d 1358, 1360 (Ind. 1992)
Interpretations of “physician”
• For purposes of the privilege, a “physician” is one who is licensed to be and is lawfully engaged in the practice of medicine, having received the degree of doctor of medicine from an incorporated institution.
William Laurie Co. v. McCullough, 90 N.E. 1014, 1018 (Ind. 1910)
• Eye doctors and chiropractors have been held to be physicians for purposes of the privilege.
See, e.g., Collins v. Bair, 268 N.E.2d 95, 100 (Ind. 1971)
• A psychiatrist is a physician, and so is governed by the physician-patient privilege.
See Summerlin v. State, 271 N.E.2d 411, 413–14 (Ind. 1971) [Here, the court discusses possible physician-patient privilege between defendants and court-appointed psychiatrists.]
• Psychologists and nurses not working under a physician's direct supervision have been held to be excluded from the statute's protection.
See, e.g., Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994)(psychologist)
See, e.g., Blevins v. Clark, 740 N.E.2d 1235, 1240 (Ind. Ct. App. 2000)(nurse)
• Mr. Alexander was his counselor in that program for some 17 months. At trial he was permitted to testify to details related to him by appellant in the course of the psychological treatments. Not only was Mr. Alexander permitted to give the detail of appellant's communications to him, but he also was permitted to give his clinical observations of appellant, which included the observation that appellant did not respond well to the program and that he felt that appellant was “a regressive pedophile.” As pointed out by the Court of Appeals in the case of Daymude v. State, this type of communication must be considered to be privileged. 540 N.E.2d 1263 (Ind. App. 1989).
Sims v. State, 601 N.E.2d 344, 346 (Ind. 1992)
Interpretations of “patient”
• Professional business' means any contact between a doctor and a person-a patient-in the course of which the doctor is required to make some evaluation, perform such duty, or do some act based upon his medical expertise which is to benefit the patient…Implicit in this definition is the idea or the concept that the relationship between a doctor and a patient is a personal relationship. The contact is for the direct benefit of the patient and not for a third party.
Vaughan v. Martin, 251 N.E.2d 444, 448 (Ind. Ct. App. 1969)
• The services to be rendered by the physician need not be prescription or treatment, so long as they are the services of a physician.
See Vaughan v. Martin, 251 N.E.2d 444 (Ind. Ct. App. 1969)
Third parties
• If the communication was made to a physician by a patient and was necessary for diagnosis and treatment, it is privileged and the physician may not testify to it, even if many other persons overheard the conversation.
See Doss v. State, 267 N.E.2d 385 (Ind. 1971) (Deputy observed removal of bullet from defendant’s hand; deputy was permitted to testify about the procedure.)
Physician disclosures
• The privilege cannot be waived by the physician.
See Collins v. Bair, 268 N.E.2d 95, 97 (Ind. 1971) (By virtue of the fact that the privilege belongs to patient alone)
• [W]e hold that where adequate safeguards exist to protect the identity and confidentiality of the non-party patient, the trial court may allow the discovery of the non-party patient medical records even where the patient has not waived the physician-patient privilege
Terre Haute Reg'l Hosp., Inc. v. Trueblood, 600 N.E.2d 1358, 1362 (Ind. 1992)
• Hospital records other than the physician's comments are not very privileged.
See Watters v. Dinn, 633 N.E.2d 280, 287-88 n.3 (Ind. Ct. App. 1994)
Hypothetical questions
• A patient's physician may answer a hypothetical question relevant to the patient's condition, as long as the physician does not take into account facts known only by reason of the physician-patient relationship.
See Robertson v. State, 291 N.E.2d 708, 711 (Ind. Ct. App. 1973)
Waiver
• The patient may waive the physician-patient privilege.
Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990), reh’g denied
• The privilege survives the patient’s death.
Heuston v. Simpson, 17 N.E. 261, 262 (Ind. 1888)
• Once the patient or the patient's successor has waived the privilege, the privilege cannot be recalled.
Boger v. Krinn, 228 N.E.2d 426, 428 (Ind. App. 1967)
• A party waives the physician-patient privilege as to all matters either causally or historically related to a physical or mental condition the party has voluntarily put in issue by way of claim, counterclaim, or affirmative defense, and which have a direct medical relevance to the legitimacy of such claim or defense.
See Collins v. Bair, 268 N.E.2d 95, 100 (Ind. 1971)
• The “condition in issue” rule does not result in a waiver extending to the party-patient's entire medical history; the waiver operates only as to “those matters causally and historically related to the condition put in issue and which have a direct medical relevance to the claim, counterclaim or defense made.”
See Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990)
See also Vargas v. Shepherd, 903 N.E.2d 1026, 1030 (Ind. Ct. App. 2009)
• Even if the patient waives the privilege by placing her mental condition in issue, mental health records are not to be released except upon a showing of good cause, including a showing that other reasonable methods of obtaining the information are not available or effective, and that the need for disclosure outweighs the potential harm to the patient.
See also Buford v. Flori Roberts, Inc., 663 N.E.2d 1159, 1161 (Ind. Ct. App. 1996)
• We find that Watson waived this privilege by voluntarily putting in issue his mental condition as an affirmative defense
Watson v. State, 784 N.E.2d 515, 520 (Ind. Ct. App. 2003)
• At the time of the psychiatric examination the defendant had waived his privilege by pleading insanity. Later, when this plea was withdrawn, the testimony was offered on rebuttal as impeachment of the defendant's own testimony. No proper and contemporaneous objection was made, and thus no right to assert an error has been preserved.