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  • Writer's pictureBrian Foley

Woodlands Criminal Defense Attorney Rules of Evidence Series RULE 509

The Physician-Patient Privilege. This rule might have more exceptions and sections than any of the other rules other than the rule against hearsay.

But for criminal law purposes it is fairly straightforward. There is no Physician-Patient privilege in a criminal case. Well okay, there is one exception to that. If the statement is made for drug or alcohol abuse treatment. The rule makers decided that as a policy the general search for truth in criminal matters would be better served by allowing people who want to seek drug and alcohol abuse treatment to obtain medical care. We might have much higher rates of death due to drug overdose if every time you went for treatment you thought you were going to be arrested and anything you told the doctors that you took would be used against you in court.

Also of note here when thinking about the physician patient privilege is how it is that the government is going to obtain the records or statements. Most prosecutors are going to use a Grand Jury Subpoena to obtain records and unless you hospital is particularly finicky about HIPPA then they are going to hand them over very quickly. If you want to try and object to this the courts have ruled that you don't have standing to object to or "quash" a grand jury subpoena for a hospital or medical provider. Murray v. State, 245 S.W.3d 37 (Tex. App. -- Austin 2007 pet. ref'd).

What about blood alcohol tests? These too if obtained through grand jury subpoena leave you without recourse. "Having held that appellant did not have a reasonable expectation of privacy with respect to his blood-alcohol test results, appellant does not have standing to complain of any alleged defects in the subpoena process. " Id. See also Ramos, 124 S.W.3d 326, 330, 336–37 (Tex.App.-Ft. Worth 2003, pet. ref'd).

Rule 509. (a) Definitions. In this rule: Physician–Patient Privilege (1) A “patient” is a person who consults or is seen by a physician for medical care.

(2) A “physician” is a person licensed, or who the patient reasonably believes is licensed, to practice medicine in any state or nation.

(3) A communication is “confidential” if not intended to be disclosed to third persons other than those:

(A) present to further the patient’s interest in the consultation, examination, or interview;

(B) reasonably necessary to transmit the communication; or

(C) participating in the diagnosis and treatment under the physician’s direction, including members of the patient’s family.

(b) Limited Privilege in a Criminal Case. There is no physician–patient privilege in a criminal case. But a confidential communication is not admissible in a criminal case if made:

(1) to a person involved in the treatment of or examination for alcohol or drug abuse; and

(2) by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse.

(c) General Rule in a Civil Case. In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing:

(1) a confidential communication between a physician and the patient that relates to or was made in connection with any professional services the physician rendered the patient; and

(2) a record of the patient’s identity, diagnosis, evaluation, or treatment created or maintained by a physician.

(d) Who May Claim in a Civil Case. The privilege may be claimed by: (1) the patient; or

(2) the patient’s representative on the patient’s behalf. The physician may claim the privilege on the patient’s behalf—and is presumed to have authority to do so.

(e) Exceptions in a Civil Case. This privilege does not apply:

(1) Proceeding Against Physician. If the communication or record is relevant to a physician’s claim or defense in:

(A) a proceeding the patient brings against a physician; or

(B) a license revocation proceeding in which the patient is a complaining witness.

(2) Consent. If the patient or a person authorized to act on the patient’s behalf consents in writing to the release of any privileged information, as provided in subdivision (f).

(3) Action to Collect. In an action to collect a claim for medical services rendered to the patient.

(4) Party Relies on Patient’s Condition. If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.

(5) Disciplinary Investigation or Proceeding. In a disciplinary investigation of or proceeding against a physician under the Medical Practice Act, Tex. Occ. Code § 164.001 et seq., or a registered nurse under Tex. Occ. Code § 301.451 et seq. But the board conducting the investigation or proceeding must protect the identity of any patient whose medical records are examined unless:

(A) the patient’s records would be subject to disclosure under paragraph (e)(1); or

(B) the patient has consented in writing to the release of medical records, as provided in subdivision (f).

(6) Involuntary Civil Commitment or Similar Proceeding. In a proceeding for involuntary civil commitment or court-ordered treatment, or a probable cause hearing under Tex. Health & Safety Code:

(A) chapter 464 (Facilities Treating Alcoholics and Drug-Dependent Persons);

(B) title 7, subtitle C (Texas Mental Health Code); or

(C) title 7, subtitle D (Persons With Mental Retardation Act).

(7) Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an “institution” as defined in Tex. Health & Safety Code § 242.002.

(f) Consent For Release of Privileged Information.

(1) Consent for the release of privileged information must be in writing and signed by:

(A) the patient;

(B) a parent or legal guardian if the patient is a minor;

(C) a legal guardian if the patient has been adjudicated incompetent to manage personal affairs;

(D) an attorney appointed for the patient under Tex. Health & Safety Code title 7, subtitles C and D;

(E) an attorney ad litem appointed for the patient under Tex. Estates Code title 3, subtitle C;

(F) an attorney ad litem or guardian ad litem appointed for a minor under Tex. Fam. Code chapter 107, subchapter B; or

(G) a personal representative if the patient is deceased.

(2) The consent must specify:

(A) the information or medical records covered by the release;

(B) the reasons or purposes for the release; and

(C) the person to whom the information is to be released.

(3) The patient, or other person authorized to consent, may withdraw consent to the release of any information. But a withdrawal of consent does not affect any information disclosed before the patient or authorized person gave written notice of the withdrawal.

(4) Any person who receives information privileged under this rule may disclose the information only to the extent consistent with the purposes specified in the consent.

Comment to 2015 Restyling: The physician–patient privilege in a civil case was first enacted in Texas in 1981 as part of the Medical Practice Act, formerly codified in Tex. Rev. Civ. Stat. art. 4495b. That statute provided that the privilege applied even if a patient had received a physician’s services before the statute’s enactment. Because more than thirty years have now passed, it is no longer necessary to burden the text of the rule with a statement regarding the privilege’s retroactive application. But deleting this statement from the rule’s text is not intended as a substantive change in the law.

The former rule’s reference to “confidentiality or” and “administrative proceedings” in subdivision (e) [Exceptions in a Civil Case] has been deleted. First, this rule is a privilege rule only. Tex. Occ. Code § 159.004 sets forth exceptions to a physician’s duty to maintain confidentiality of patient information outside court and administrative proceedings. Second, by their own terms the rules of evidence govern only proceedings in Texas courts. See Rule 101(b). To the extent the rules apply in administrative proceedings, it is because the Administrative Procedure Act mandates their applicability. Tex. Gov’t Code § 2001.083 provides that “[i]n a contested case, a state agency shall give effect to the rules of privilege recognized by law.” Section 2001.091 excludes privileged material from discovery in contested administrative cases.

Statutory references in the former rule that are no longer up-to-date have been revised. Finally, reconciling the provisions of Rule 509 with the parts of Tex. Occ. Code ch. 159 that address a physician-patient privilege applicable to court proceedings is beyond the scope of the restyling project.

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