No Federal Physician-Patient Privilege Recognized Under FRE 501

In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)

It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege. This has not stopped the effort of practitioners to find a basis for the claim that an active doctor-patient privilege applies in the federal courts. As recently as 2007, the federal circuits were still explaining the absence of the doctor-patient privilege, as illustrated by a 2007 Seventh Circuit case.

In the case, defendant Bek was a physician. He was accused of improperly distributing controlled substances by writing prescriptions that were inconsistent with the legitimate medical care of his patients. Other factors suggesting he engaged in an illicit drug practice was his use of uniform, superficial, or careless medical examination procedures; his poor record-keeping practices, and his disregard for blatant signs of drug abuse in his patients. A prosecution expert witnesses testified that the defendant prescribed the “same menu” of drugs and in the same dosages to different patients, regardless of body build or kidney function and that this was contrary to accepted medical practice. There was also evidence that the defendant prescribed multiple medications having the same effects and that the prescribed drugs were often dangerous when taken in combination. The defendant was convicted and appealed, contending in part that the trial court improperly admitted patient medical records that were protected by a privilege of confidentiality.

The Seventh Circuit affirmed the admission of the patient records. The circuit noted that federal common law “has not historically recognized a privilege between patients and physicians.” Because no other federal circuit recognized a federal physician-patient privilege, the Seventh Circuit declined to create such a privilege. As the circuit explained, the defendant:

“cannot establish that the medical records were subject to any privilege of confidentiality. Federal common law has not historically recognized a privilege between patients and physicians. Bek acknowledges this shortcoming in his argument, but contends that we should find such a privilege here. He relies on Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), in which the Supreme Court recognized a privilege between a psychotherapist and a patient and noted that under Rule 501 of the Federal Rules of Evidence, federal courts may define new privileges. But we can find no circuit authority in support of a physician-patient privilege, even after Jaffee. Indeed, in a decision issued afterJaffee, we declined to recognize such a privilege,, and we can find no reason to create one now.”

Bek, 493 F.3d 790 , 801-02 (7th Cir. 2007) (citing Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004) ( “[T]he evidentiary privileges that are applicable to federal-question suits are given not by state law but by federal law, Fed.R.Evid. 501, which does not recognize a physician-patient (or hospital-patient) privilege.”); see also Whalen v. Roe, 429 U.S. 589, 602 n. 28, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ( “The physician-patient evidentiary privilege is unknown to the common law.”)

Nor did other federal legislation or regulations create an evidentiary physician-patient privilege. The circuit dismissed the notion that the Health Insurance Portability and Accountability Act (HIPAA) created a vehicle that could act as a doctor-patient privilege. According to the circuit, “HIPAA did not give rise to a physician-patient or medical records privilege. See Northwestern Mem'l Hosp., 362 F.3d at 926 ('We do not think HIPAA is rightly understood as an Act of Congress that creates a privilege.'). It did, however, 'create a procedure for obtaining authority to use medical records in litigation.' Id. In this case, none of HIPAA's requirements regarding disclosures of patient information was transgressed. ” Bek, 493 F.3d 790 , 802 (7th Cir. 2007)

The Seventh Circuit is only one of the most recent circuits to weigh in on the absence of a federal physician-patient privilege. Other courts that have considered the matter include:

  • Supreme Court: Whalen v. Roe, 429 U.S. 589, 602 n. 28 (1977) (“The physician-patient evidentiary privilege is unknown to the common law.”)
  • Second Circuit: United States v. Witt, 542 F. Supp. 696, 698-699 (S.D. N.Y. 1982) (no generally recognized physician-patient privilege), aff'd, 697 F.2d 301 (2d Cir. 1982)
  • Fifth Circuit: United States v. Burzynski Cancer Research Institute, 819 F.2d 1301, 1311 (5th Cir. 1988) (“In the context of federal criminal proceedings, no physician-patient privilege exists.”)
  • Sixth Circuit: Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992) (“[F]ederal courts do not recognize a federal physician-patient privilege....”, but considering testimony of treating physician when patient consented to disclosure)
  • Eighth Circuit: United States v. Bercier, 848 F.2d 917, 920 (8th Cir. 1988) (“[F]ederal courts do not recognize the physician-patient privilege in federal criminal proceedings.”; so that statements made by defendant to treating physician were outside scope of any privilege)
  • Eleventh Circuit: United States v. Lindstrom, 698 F.2d 1154, 1167 n.9 (11th Cir. 1983) (no physician-patient privilege at common law, and no statute, so testimony on doctor-patient relationship is admissible)
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