RULE 503. PHYSICIAN AND PSYCHOTHERAPIST-PATIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist.
(2) A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.
(3) A "psychotherapist" is (i) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction, or, (ii) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.
(4) A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.
(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
(1) Proceedings for Hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, including alcohol or drug addiction, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.
(2) Examination by Order of Court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.
(3) Condition an Element of Claim or Defense. There is no privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.
Rule 503 is modeled after Rule 503 of the Uniform Rules of Evidence (1974). The rule retains the physician-patient privilege which has long been provided by statute in North Dakota. The rule also provides that certain communications made to a psychotherapist or to a licensed psychologist are privileged.
Subdivision (a) contains the definitions of the parties to the privilege and of the term "confidential." It should be noted that members of a patient's family are expressly included in that group of people to whom communications may be made without a waiver of the privilege, provided, of course, that the communications otherwise meet the requirements of the rule.
As to the general rule of privilege contained in subdivision (b), note should be made of the fact that only those communications made "for the purpose of diagnosis or treatment" are privileged. This is a narrower privilege than under prior law, 31-01-06, NDCC, which covered "any communication made by the patient in the course of professional employment."
Subdivision (c) provides that the privilege may be claimed by the personal representative of a deceased patient. In actions where all parties are claiming through a deceased patient, the privilege has been held not to apply. Lembke v. Unke, 171 N.W.2d 837 (N.D. 1969).
Subdivision (d)(1) provides that there is no privilege for communications relevant to an issue in hospitalization proceedings. "Such an exception is essential if the psychiatrist is to perform his role which will, in some instances, require that he use the material supplied by the patient as a basis for hospitalization." Goldstein and Katz, Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute, 36 Conn. Bar J. 175 at 187 (1962).
The exception applies only to communications (1) relevant to an issue (2) in proceedings to hospitalize the patient for mental illness. As to communications not relevant to the subject of commitment, and in actions other than commitment proceedings, the privilege applies.
In a court-ordered examination of a party or witness, the purpose usually is not for treatment or for diagnosis with a view toward treatment. No professional relationship is created and, thus, under subdivision (d)(2), the privilege does not attach to communications made in the course of those examinations.
Whenever a patient brings his physical or mental condition into issue as an element of a claim or defense, there is no longer any reason to continue the privilege as the patient has voluntarily chosen to disclose certain aspects of the privileged communication. Nor is there justification for allowing the privilege to be used as a "sword," rather than a "shield." Subdivision (d)(3) removes the privilege in these instances. For a recent case holding that, under prior law, the privilege is waived by the initiation of a medical malpractice action, see Sagmiller v. Carlson, 219 N.W.2d 885 (N.D. 1974).
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 5. Rule 503, Uniform Rules of Evidence (1974).
SUPERSEDED: 31-01-06(3), NDCC.
CONSIDERED: 14-17-13, 23-07-01.1, 37-18-11(6)(b), 50-25.1-10, NDCC.
CONSIDERED: Rule 35(b)(2), NDRCivP.