| (a)
N.J.S. 2A: 84A-22.1 provides:
As used in this act, (a) "patient" means a person who,
for the sole purpose of securing preventive, palliative, or curative
treatment, or a diagnosis preliminary to such treatment, of his
physical or mental condition, consults a physician, or submits to
an examination by a physician; (b) "physician" means a
person authorized or reasonably believed by the patient to be authorized,
to practice medicine in the State or jurisdiction in which the consultation
or examination takes place; (c) "holder of the privilege"
means the patient while alive and not under the guardianship of
the guardian of the person of an incompetent patient, or the personal
representative of a deceased patient; (d) "confidential communication
between physician and patient" means such information transmitted
between physician and patient, including information obtained by
an examination of the patient, as is transmitted in confidence and
by a means which, so far as the patient is aware, discloses the
information to no third persons other than those reasonably necessary
for the transmission of the information or the accomplishment of
the purpose for which it is transmitted.
(b) N.J.S. 2A:84A-22.2 provides:
Except as otherwise provided in this act, a person, whether or
not a party, has a privilege in a civil action or in a prosecution
for a crime or violation of the disorderly persons law to refuse
to disclose, and to prevent a witness from disclosing, a communication,
if he claims the privilege and the judge finds that (a) the communication
was a confidential communication between patient and physician,
and (b) the patient or the physician reasonably believed the communication
to be necessary or helpful to enable the physician to make a diagnosis
of the condition of the patient or to prescribe or render treatment
therefor, and (c) the witness (i) is the holder of the privilege.
Background of the Privilege
As set forth in Biunno, Current NJ Rules of Evidence, Comment 1
to NJRE 506, (Gann) Even prior to the enactment of the statutory
privilege doctors were ethically restrained by the Oath of Hippocrates
from violating the privacy of their patients by disclosing confidential
information in the absence of legal compulsion. State v. Schreiber,
supra, at 586-588; Hague v. Williams, supra at 332, 335; Lazorick
v. Brown, 195 N.J. Super. 444, 451 (App. Div. 1984).
This ethical obligation is now embodied in Section 9 of the Principles
of Medical Ethics of the American Medical Association. In this spirit
law enforcement officers were cautioned in State v. Schreiber, supra,
at 587, "not to cajole hesitant hospital doctors to violate
confidences absent some preceding justification."
Nevertheless, even without testimonial compulsion, it was held
in Hague v. Williams, supra, that information concerning a patient's
medical condition could be disclosed to someone having a legitimate
interest in the subject "where ... the physical condition of
the patient is made an element of a claim." Id. at 336. See
Kurdek v. West Orange Educ. Bd., 222 N.J. Super. 218, 224 (Law Div.
1987).
The privilege is designed to enable a patient to secure medical
services "without fear of betrayal and unwarranted embarrassing
and detrimental disclosure in court of information which might deter
him from revealing his symptoms to a doctor to the detriment of
his health." Stempler v. Speidell, 100 N.J. 368, 374 (1985);
Kurdek v. West Orange Educ. Bd., supra, at 223-224.
The New Jersey Supreme Court has recognized that when a law enforcement
agency is investigating allegations of medical fraud, it may have
to give notice to holders of the physician-patient privilege before
it can subpoena records deemed necessary for their investigations.
State v. Dolinger, 96 N.J. 236, 254 (1984). R. 4:14-7(c), the rule
of practice governing the use of a subpoena for taking depositions,
is directed toward preventing disclosure of privileged information
by an expert such as a doctor without notice to other parties. Vasquez
v. YMCA, 263 N.J. Super. 408, 411 (Law Div. 1992).
Even after Schreiber, a driver suspected of having an elevated
blood alcohol level does not necessarily lose all interest in the
confidentiality of his medical records. Where a blood test was taken
for diagnostic rather than investigative purposes and where investigation
is of death by auto charges or any other crime or disorderly persons
offense, the privilege would still apply under the restrictions
established by State v. Dyal, 97 N.J. 229 (1984).
Also, the term "confidential communication" is defined
as including information obtained by an examination of the patient.
State, In Interest of M.P.C., supra. Thus, the privilege is not
confined solely to oral or written communications; if there was
an expectation of confidentiality, "[a] physician's impressions
secured by any of his senses may be privileged against disclosure."
State v. Phillips, supra at 542, N. 4.
It should be noted that the privilege encompasses not only the
claimant's ability to refuse to disclose communications, but also
the claimant's ability to prevent a witness from making such disclosure.
Thus, where the privilege is applicable, neither physicians nor
third persons, within the ambit of N.J.R.E. 506(a) and N.J.S. 2A:
84A-22.1(d), may disclose confidential communications.
Any confidential statements made to a treating nurse, who was acting
either as an agent under a doctor's supervision or in her own professional
capacity, should be protected from disclosure under N.J.S. 2A:84A-22.2(c)(ii).
See State v. Phillips, 213 N.J. Super. 534, 543, n. 5 (App. Div.
1986).
But once a patient waives the privilege by bringing an action involving
an aspect of his physical condition, it is a waiver covering all
of his physician's knowledge concerning that condition. Stigliano
v. Connaught Labs, Inc., supra, at 312. Thus, a plaintiff's treating
doctors can testify for a defendant "concerning their physical
examinations and diagnoses of plaintiff."
|
