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What is the physician and patient privileged communication rule ?

Suggested Answer:

1. A person authorized to practice medicine, surgery or obstetrics
2. cannot in a civil case
3. without the consent of the patient,
4. be examined as to
   a. any advice or treatment given by him or
   b. any information
      1. Which he may have acquired in attending such patient in a
         professional capacity,
      2. Which information was necessary to enable him to act in that
      3. Which would blacken the reputation of the patient.
         (Sec.24 (c) Rule 130 ROC)

The physician may be compelled to testify in a criminal case.

Rationale Behind The Privilege:
The reason is to facilitate and make safe, full and confidential
disclosure by a patient to the physician of all symptoms, untrammeled
by apprehension of their subsequent and enforced disclosure and
publication on the witness stand.
(Will of Bruendl, 102 Wis. 47)

Waiver Of The Privilege:
This privilege belongs to the patient, so that it is only he that can
claim or waive it. It is waivable expressly or impliedly. It is
impliedly waived like any other privilege rule.
(Penn. Mutual Life Ins. Co. vs. Wiler 100 Ind. 92)

This privilege is intended to facilitate and make safe, full and
confidential disclosure by patient to physician of all facts,
circumstances, and symptoms, untrammeled by apprehension of their
subsequent and enforced disclosure and publication on the witness
stand, to the end that the physician may form a correct opinion, and
be enabled safely and efficaciously to treat his patient.

1. The physician is authorized to practice medicine, surgery, or
2. The information was acquired or the advice or treatment was given
   by him in his professional capacity for the purpose of treating and
   curing the patient
3. The information, advice or treatment, if revealed, would blacken
   the reputation of the patient
4. The privilege is invoked in a civil case, whether patient is a
   party or not

It is not necessary that the physician-patient relationship was
created through the voluntary act of the patient. For example the
treatment may have been given at the behest of another, the patient
being in extremis.

The privilege extends to all forms of communications as well as to
the professional observations and examinations of the patient.

The Privilege Does Not Apply Where
1. The communication was not given in confidence
2. The communication is irrelevant to the professional employment
3. The communication was made for an unlawful purpose, as when it
   is intended for the commission or concealment of a crime
4. The information was intended to be made public
5. There was a waiver of the privilege either by provisions of
   contract or law

The rule does not apply to mere causal information stated by the
witness because such information is not necessary for the treatment
of the patient.

If the physician confined himself merely to the ascertainment of
the nature and character of the injury for the purpose of reporting
them to the defendant, physician may testify.

The burden of proving that such relation does not exist is upon the
person objecting it.

Death of the patient does not extinguish the relation.

Under Rule 28 of the Rules of Court, the results of the physical
and mental examination of a person, when ordered by the court, are
intended to be made public, hence they can be divulged in that
proceeding and cannot be objected to on the ground of privilege.

Result of autopsies or post mortem examinations are generally
intended to be divulged in court, aside from the fact the doctor’s
services were not for purposes of medical treatment.

An example of a waiver of the privilege by provision of law is found
in Section 4 of said Rule 28 under which if the party examined
obtains a report on said examination or takes the deposition of the
examiner, he thereby waives any privilege regarding any other
examination of said physical or mental condition conducted or to
be conducted on him by any other physician.

Waiver of the privilege by contract may be found in stipulations
in life insurance policies.

The disqualification due to privilege communications between
ministers or priests and penitents require that the same were made
pursuant to a religious duty enjoined in the course of discipline
of the sect or denomination to which they belong and must be
confidential and penitential in character. Example: under seal of
the confessional.

Bar Examination 1998
C is the child of the spouses H and W. H sued his wife W for judicial
declaration of nullity of marriage under Article 36 of the Family Code.
In the trial, the following testified over the objection of W: C, H
and D, a doctor of medicine who used to treat W. Rule on W's objections
which are the following:

      1. H cannot testify against her because of the rule on marital
         privilege; [1%]
      2. C cannot testify against her because of the doctrine on
         parental privilege; and [2%]
      3. D cannot testify against her because of the doctrine of
         privileged communication between patient and physician.(2%)

Suggested Answer:
1. The rule of marital privilege cannot be invoked in the annulment
   case under Rule 36 of the Family Code because it is a civil case
   filed by one against the other,
   (Sec.22 Rule 130 Rules of Court)
2. The doctrine of parental privilege cannot likewise be invoked by W
   as against the testimony of C, their child. C may not be compelled
   to testify but is free to testify against her.
   (Sec.25 Rule 130 Rules of Court Art.215 Family Code)
3. D, as a doctor who used to treat W, is disqualified to testify
   against W over her objection as to any advice or treatment given
   by him or any information which he may have acquired in his
   professional capacity. (Sec. 24(c) Rule 130 Rules of Court)