By Alex Stein
When a patient files a malpractice suit against a doctor, she waives the evidentiary privilege that protects the information pertaining to her treatment by the doctor. This information extends to all communications between the patient and the doctor, the patient’s medical history, diagnosis, treatment, and medical records. The patient’s waiver of the privilege is not absolute. Rather, it relates only to information and documents needed for the doctor’s defense. The same principle applies to the patient’s treating physician whom she did not sue. The defendant is entitled to subpoena this nonparty physician and obtain from her information and documents relevant to his defense.
To realize this entitlement, the defendant’s attorney needs to interview the nonparty physician before trial. The patient’s attorney demands to be present at that interview to protect her client’s privilege by appropriately limiting the physician’s questioning by the defendant’s attorney. The defendant’s attorney counters this demand by invoking the attorney-client privilege and its “work product” extension.
This battle of privileges has no easy solution. Read More