🚀 go-pugleaf

This is a follow-up to my previously-posted evidence question on P's suit 
against an airport.  The source of this question is Judge Jefferson's two 
volume benchbook on Evidence (1982).  I was told that Kaplan, et al, 
lift their problems from Jefferson.

I'll post Jefferson's answer in the next message.

The question is "should P's claim of privilege be sustained?"  I'm going 
to pretend that the question was broader just to go through more of the 
privileges-dance.

This is a California case, but if it were federal, under FRE 501, 
privileges in civil actions are determined in accordance with state law.

CA Evidence Code ("CEC") 994 and 1014 provide that a patient has a 
privilege to refuse to disclose a confidential communication between the 
patient and physician or psychotherapist.  Here, P was a patient, so 
there's no problem of whether the person asserting holds the privilege.

D has the burden of proving that the communication was not confidential 
under CEC 917.  D is not claiming no confidentiality, so we don't need to 
inquire into whether D has met that burden.

With regard to whether the info sought was a communcation, CEC 992 and 
1012 state that a confidential communication includes a diagnosis made by 
the physician  and psychotherapist.  The rationale for the privilege is 
to encourage full disclosure to aid in treatment.  The "ailments" D wants 
to know about would require P to reveal his doctor's diagnosis, thus the 
communications D seeks would qualify as confidential communications.

P has not waived the privilege in any way.  P did not fail to object, 
consent to disclosure, or call the doctors as witnesses.

CEC 996 and 1016 provide that there is no privilege "relevant to an issue 
concerning the condition of the patient if such issue has been tendered" 
by the patient.  In _ In re Lifshutz _,  the CA S.Ct. found that a 
patient's communications to his psychiatrist had lost their privileged 
status when the patient put his mental condition in issue by seeking to 
recover damages for mental and emotional distress.  Similarly in the 
question posed, D can argue that by claiming physical injuries and 
emotional damages, P has put his medical and psychological history at issue.

P's doctors won't be able to argue that their constitutional right to 
privacy is infringed, since the CA S.Ct. settled that issue in favor of 
disclosure in _Lifschutz_.

The problem is that D's demand is too broad.  P has not put all his 
ailments, from whatever cause, during his lifetime, in issue.  P has only 
tendered the issue of his injuries and damages from the aircraft noise.  
Thus the patient-litigant exception would not deprive P of his privilege 
as to a communication with his doctors regarding, say, the leg he broke 
while skiing or the counseling he sought while going through a divorce 
prior to when he lived next to the airport.

P's claim of privilege should be sustained with regard to communications 
between P and his doctors that fall outside the scope of the litigation.

Might D argue that he needs P's entire history because P's condition was 
caused by something other than exposure to airport noise?  I wouldn't 
know -- I don't see any guidance in the rules and we haven't covered case 
law on this.


 -- 
bross@uclink.berkeley.edu (Bonnie Ross)
Boalt Hall School of Law
---