Question About Lawyer-Doctor/Client Privilege

This is probably a very stupid question but I’m wondering about doctor/client or lawyer/client privilege: does it work both ways? In other words, say I’m visiting my doctor and he comes into the examination room and says something like, “Man, I’ve been working 72 hours straight without sleep.” Later that day he falls asleep at the wheel and kills someone. Meanwhile, I’ve been telling others what my doctor said earlier. His lawyers want to keep what he told me out of the trial. Could I be compelled to testify against him?

There are probably better examples, but it’s late!


Stephe, in many States the professional testimonial privileges, physician-patient, lawyer-client, priest-penitent, and the like, exist by statute–the legislature has acted to define the privilege and say who it protects and when. As a general proposition they all protect the non-professional from having things told to the physician/lawyer/priest revealed to the patient/client/penitent’s injury. The physician-patient privilege does not protect the physician. It protects the patient by allowing the patient to prevent the physician for telling what the patient said or what the examination revealed. It does not protect the physician from his own statements, unless he is talking to his own lawyer or priest or aroma therapist or what ever. The patient, client or penitent only can assert the privilege and there are exceptions to that. You need to consult the statutes, rules of evidence and decided cases in your own jurisdiction to get a complete answer to your question.

You run into the same sort of question in the marital relationship where the whole thing is complicated by the idea that one spouse is not a competent witness against the other spouse–not just a testimonial privilege but can’t testify at all. Again, to get a complete answer you need to read the statutes, court rules and decided cases of the particular State.

I generally agree with Spavined’s answer. In these types of relationships, the non-professional client “holds” the privilege. That is, he can testify about the conversation, and he can allow the professional to testify about the conversation – it’s totally up to him. It’s just that the professional cannot testify about the conversation absent consent by the client.

You also have a broader view of the privilege than is accurate in most jurisdictions. First of all, several jurisdictions (including the federal government) do not recognize a privilege for communications between doctor and patient, although many other jurisdictions do recognize such a privilege. (The fed. does recognize a privilege between psychotherapists and their patients, but not medical doctors.) Moreover, even if conversations between docs and patients were privileged, the privilege typically applies only to statements made within the context of providing the professional service. Therefore, an orphan statement by the doctor that didn’t have anything to do with the patient’s medical condition (such as an admission that the doctor is tired) would ordinarily not be privileged, even if the bulk of that conversation were protected.


Lawyer-type people – is it also true that revealing part of a privileged conversation (testifying that your doctor said X about your condition) waives the privilege for the entire conversation?

Nametag, that’s generally accurate. The idea is that you can use the privilege as a shield, but not a sword. You can’t release the parts of privileged conversations which help your case while still protecting the information that would hurt you – so if the privilege-holder decides to put in evidence about his privileged conversation, usually the whole conversation then becomes eligible and the other side can cross-examine on it.

Something like the statement in the OP wouldn’t qualify, though – testifying as to that statement wouldn’t be using th eprivilege as a sword. Rather, it would be testifying as to a portion of the conversation that did not put the rest of the conversation into contention. (Or at least not past a follow up question, like “Is that all he said on the subject?”)