---
title: "Physician-Patient Privilege"
type: Legal Rule
source: https://casebriefly.com/legal-rules/physician-patient-privilege
---

# Physician-Patient Privilege

The physician-patient privilege protects confidential communications between a patient and their physician made for the purpose of diagnosis or treatment. There is no federal physician-patient privilege under FRE; it exists only under state law. A related psychotherapist-patient privilege was recognized federally in Jaffee v. Redmond.

## Definition

The physician-patient privilege protects confidential communications made by a patient to a physician for the purpose of obtaining medical diagnosis or treatment. Unlike the attorney-client privilege, there is no general physician-patient privilege recognized in federal courts under the Federal Rules of Evidence. FRE 501 directs federal courts to develop privilege law through common law principles, and the Supreme Court has not recognized a general physician-patient privilege. However, most states recognize the privilege by statute, and in diversity cases, federal courts apply state privilege law under FRE 501.

The Supreme Court did recognize a federal psychotherapist-patient privilege in Jaffee v. Redmond (1996), holding that confidential communications between a patient and a psychotherapist (including licensed social workers) are protected. The Court reasoned that effective psychotherapy depends on an atmosphere of confidence and trust, and the public interest in facilitating mental health treatment outweighs the need for probative evidence. The Jaffee privilege is absolute rather than subject to case-by-case balancing.

Where the physician-patient privilege exists under state law, it typically has several limitations. The privilege does not apply when the patient puts their physical or mental condition at issue in litigation (the patient-litigant exception). It may not apply in criminal proceedings in many jurisdictions. It does not cover communications made for purposes other than treatment, such as court-ordered examinations. The privilege may be waived by the patient's disclosure of the information to third parties or by the patient's consent. The patient holds the privilege and may waive it; the physician generally has a duty to assert the privilege on the patient's behalf until waiver. The privilege covers communications, not the physician's independent observations of obvious conditions.

## Elements

- A confidential communication was made between a patient and a physician (or psychotherapist)
- The communication was made for the purpose of obtaining medical diagnosis or treatment
- The communication was intended to be confidential
- The patient holds the privilege
- No federal physician-patient privilege exists (except the psychotherapist-patient privilege under Jaffee); state privilege law applies in diversity cases
- Common exceptions include the patient-litigant exception, court-ordered examinations, and criminal proceedings

## Key Case

Jaffee v. Redmond, 518 U.S. 1 (1996)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Jaffee v. Redmond | 518 U.S. 1 (1996) | Recognized a federal psychotherapist-patient privilege extending to licensed social workers, holding that the privilege is absolute and not subject to case-by-case balancing. |
| Whalen v. Roe | 429 U.S. 589 (1977) | While primarily a constitutional privacy case, addressed the confidentiality interests underlying the physician-patient relationship and medical records. |
| United States v. Bercier | 848 F.2d 917 (8th Cir. 1988) | Confirmed the absence of a general federal physician-patient privilege, holding that communications to a treating physician are not privileged in federal criminal cases. |

## Exam Tips

- The most important exam point: there is no general federal physician-patient privilege. Only the psychotherapist-patient privilege has been recognized federally (Jaffee). State law applies in diversity cases.
- When a patient puts their physical or mental condition at issue (e.g., personal injury lawsuit), the privilege is typically waived under the patient-litigant exception.
- Distinguish the physician-patient privilege from the psychotherapist-patient privilege — Jaffee specifically recognized the latter, not the former, at the federal level.
- Remember FRE 501: in federal question cases, federal common law governs privileges; in diversity cases, state privilege law applies.

## Common Mistakes

- Assuming there is a federal physician-patient privilege — there is not. Only the psychotherapist-patient privilege exists under federal common law (Jaffee).
- Failing to apply the patient-litigant exception — when the patient places their health at issue in litigation, the privilege is typically waived.
- Confusing the hearsay exception for statements made for medical diagnosis (FRE 803(4)) with the physician-patient privilege — they serve entirely different functions.

## Mnemonic Or Memory Aid

No federal doctor privilege, but your therapist's couch is sacred (Jaffee). For doctors, check state law.

## Related Rules

- attorney-client-privilege
- spousal-privilege
- relevance-fre-401-403

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Source: [Physician-Patient Privilege — CaseBriefly](https://casebriefly.com/legal-rules/physician-patient-privilege)