Hippocrates to HIPAA: a foundation for a federal physician-patient privilege (original) (raw)

The physician-patient privilege allows a patient to prevent his or her physician from revealing in court, as a witness, confidential information communicated to the physician during the course of professional treatment. 2 ScoTr N. STONE & ROBERT K. TAYLOR, TESTIMONIAL PRIVILEGES, §7.01 at 7 (2d ed. McGraw-Hill 1995). The right to assert the privilege generally belongs solely to the patient who may waive it even when the physician would rather not testify to matters revealed during the course of treatment. Id. at 8. 3. See Whalen v. Roe, 429 U.S. 589, 602 n.28 (1977) (noting that "physician-patient privilege is unknown to the common law"); Patterson v. Caterpillar, Inc., 70 F.3d 503, 506-07 (7th Cir. 1995) (stating that federal common law does not recognize physician-patient privilege); Gilbreath v. Guadalupe Hosp. Found., 5 F.3d 785, 791 (5th Cir. 1993) (concluding that physician-patient privilege does not exist under federal law). 4. 277 U.S. 438 (1928). 5. Id. at 472. 6. Id. at 473 (quoting Weems v. U.S., 217 U.S. 349,373 (1910)). 7. Specifically, absent a federal physician-patient privilege, physicians can' be compelled by a federal court to give testimony, based on' information they obtained thi'ough confidential communications with their patientsinformation that might be beneficial in court proceedings, but could be damaging to their patients. STONE & TAYLOR, supra note 2, at 7.