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Can My Doctor Testify Against Me at Trial?


Experienced Attorneys Protecting Patient’s Rights

Serving Troy, Albany, Saratoga and all of Upstate New York

doctor testify against patient in deposition

While lab tests, height/weight records, blood pressure charts, and other so-called medical “data” may properly occupy an important part of a patient’s overall health program, most New Yorkers and others would point to an intangible factor that is crucial to a patient’s physical and mental well-being: The relationship of trust that exists between a doctor and his or her patient.

When the patient is involved in litigation, the patient might wonder if the communications he or she disclosed in conferences with a physician can be used in a detrimental way. That is to say, “Can my doctor testify against me at trial?” Often, but not always, the answer is “No.”

Physician-Patient Privilege

New York and most other states view the relationship between physician and patient to be so important, so bound up within a sphere of confidentiality that generally, any communication between a patient and his or her physician is protected from disclosure to others. The communications may not be disclosed by the physician, even if the physician is called to testify. The purpose of the strong privilege is one of public policy: Only by allowing a patient to speak freely with the physician can the latter provide the best and fullest medical treatment possible.

Privilege is Broad

Ordinarily, the physician-patient privilege is quite broad, protecting not only the actual conversations between the patient and the physician, but also the following:

  • Medical documents created in connection with treatment
  • Medical opinions held by the physician
  • Diagnostic information, as well as course of treatment notes

Federal law expands, to some degree, the privilege to include personal information provided to the physician, such as date of birth, social security numbers, etc.

Other Important Elements

The patient-physician privilege does not exist with regard to every communication made to a doctor. Consider the following:

  • The communication must have been made in such a confidential environment. For example, a discussion with the doctor in a busy waiting room, where others are present, is not such an environment that would protect the confidentiality of the statement.
  • The presence of a third person, other than someone working directly as an agent of the doctor (e.g., a nurse or other practitioner) defeats the privilege. Even if the third person is one’s spouse or parent, the confidentiality privilege is breached.
  • The privilege is not absolute. State laws require that some medical information be disclosed for the protection of society (e.g., diagnoses related to some sexually transmitted diseases, gunshots, child abuse, and the like).
  • There must be an actual physician-patient relationship. A statement made to a doctor friend at a cocktail party is not likely protected by the privilege.
  • If you are being examined by a “hostile” physician (i.e., one hired by an opposing party to perform the examination), there is no physician-patient relationship; anything you say can be used against you.

Waiver of the Privilege in Connection with Personal Injury Case

Bear in mind also that in some instances a party who pursues a personal injury claim may be deemed to have waived the physician-patient privilege so far as it is related to the treatment and condition that forms the basis of the claim.

It is the Patient’s Privilege, Not the Doctor’s

Finally, one should bear in mind that the privilege belongs to the patient, not to the physician. That means it can be waived only by the patient. Where there has been no prior waiver, the physician may not disclose personal information or other protected facts and if he or she does so, the physician can be held liable for breach of the important confidential relationship.

E. Stewart Jones Hacker Murphy: Experienced, Caring Attorneys

Has a physician disclosed information about you to a third party that you feel is privileged? If so, the physician may be liable for damages. The attorneys at E. Stewart Jones Hacker Murphy are caring, experienced attorneys who can help you determine if you have a valid claim. We have the experience to handle your case and if it is in your interests to settle such a claim, we have the skill, resources, and tenacity to help you recover an appropriate amount of damages. We can also take your case to trial if necessary.

We are one of the most highly respected law firms in upstate New York and the Capital District. We have been representing clients for more than 125 years; our law practice has stood the test of time. Make the right call. Call us now at (518) 730-4723 or complete our online form. The E. Stewart Jones Hacker Murphy law firm has an attorney available to assist clients 24 hours a day, seven days a week, 365 days a year – even on holidays.

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