The physician-patient and psychotherapist-patient privilege, embodied in Delaware Rule of Evidence 503, is not part of the common law.36 Under Rule 503, 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 or her physical, mental or emotional condition, including alcohol or drug addiction, among the patient, the 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.37 The purpose of the privilege is to encourage a patient to disclose freely all matter which might aid in the diagnosis and treatment of disease and injury, without fear of possible humiliation by disclosure of private details concerning health and bodily condition.38
A “patient” is defined as a person who consults or is examined or interviewed by a physician or psychotherapist for treatment or diagnosis.39 If an individual commits himself or herself to a hospital for purposes other than diagnosis or treatment, the privilege does not apply.40
A communication is “confidential” for the purpose of the physician-patient and psychotherapist-patient privilege if it is 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.41 Information obtained by a physician or psychiatrist in a supervisory or administrative capacity, as opposed to a professional or treating capacity, is not privileged.42
A “physician” is a person authorized to practice medicine in any state or nation or reasonably believed by the patient so to be.43 A “psychotherapist” is (a) 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 (b) a person licensed or certified as a psychologist under the laws of any state or nation while similarly engaged.44 Communication to a “counselor” who is neither a licensed physician not a licensed psychotherapist is not covered by this rule.44.1
The privilege may be claimed only by the patient, the patient’s guardian or conservator or the personal representative of a deceased patient. It may not be claimed by the physician or psychotherapist on his or her own behalf. 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.45 Further, the privilege may be claimed by a hospital on behalf of its patients46 and an employer on behalf of its employees.47 When the privilege is asserted, the physician or psychotherapist is bound not to disclose the information, unless the court determines that the privilege is inapplicable. The claimant has the burden of establishing the elements necessary to invoke the privilege.47.1
There are seven codified exceptions to this privilege. First, there is no privilege for a communication relevant to an issue in proceedings to hospitalize the patient for mental illness if the physician or psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.48
Second, if the court orders an investigation or examination of the physical, mental or emotional condition of a patient, whether a party or a witness, communications in the course thereof are not privileged with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.49
Third, there is no privilege as to a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of the patient’s claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the patient’s claim or defense.50 For example, when a defendant in a criminal case places his or her competency in issue and indicates a reliance on the insanity defense, the privilege is inapplicable to those issues.51 Similarly, where a plaintiff files a personal injury claim, the plaintiff waives the privilege as to his or her medical history.52 This is limited to medical information relevant to claims at issue in the lawsuit.53
Fourth, the privilege does not apply to communications where the services of the mental health provider, physician or psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known, was a crime or a fraud or mental or physical injury to the patient or another individual.53.1
Fifth, the privilege does not apply to communications in which the patient has expressed an intent to engage in conduct likely to result in imminent death or serious physical injury to the patient or another individual.53.2
Sixth, the privilege does not apply to a communication relevant to a breach of duty by the mental health provider, physician or therapist.53.3
Finally, there is no privilege for a communication relevant to proceedings brought for the appointment of a guardian of an aged, mentally infirm or physically incapacitated person or actions relating to claims of child abuse.54
The disclosure of a patient’s name in a context that does not reveal anything of the patient’s medical condition does not violate the privilege. Similarly, disclosure of a patient’s medical condition without revealing the patient’s identity does not violate the privilege.55
It has also been held that, in a criminal case, the physician- and psychotherapist-patient privilege must defer to the defendant’s constitutional right to confront witnesses where there is substantial evidence that the mental condition of a vital prosecution witness might reasonably affect that witness’s credibility.56 Where a defendant claims a need for such evidence, the trial court must review the evidence in camera to determine whether it discloses any reasonable basis for believing that the mental condition of the witness might affect his or her testimony. Only after such an in-camera review can the court make a threshold determination whether disclosure may result in either admissible evidence or a basis for meaningful cross-examination. If, after an in camera review, the court determines that there is a reasonable basis for believing that medical personnel may have information relating to the mental condition of a witness that might affect that witness’s testimony, the evidence may be made available to counsel for review to determine whether it includes information pertaining to the complaining witness’s mental condition that would bear on his or her testimonial capacity and reliability as a witness. After the discovery, should the State still wish to call the witness and the defendant wish to cross-examine the witness, the court must allow voir dire to determine whether the evidence includes any other privileged information admissible for impeachment purposes. If the witness is called to the stand, the court must allow voir dire to determine the admissibility of any portions of the medical record or the appropriateness of any portions of the record being used for cross-examination of the witness to determine the mental and emotional condition of the witness and whether or not it may impair the ability of the witness at trial to recollect and testify to the events of the incident that forms the basis of the criminal charge. If, after conclusion of the voir dire, there is no evidence admissible for impeachment or admissible directly in its own right, the matter will be concluded.57
Where a patient is disoriented and is not aware of the presence of a third party while speaking with a physician, such circumstance may be found not to constitute a waiver of the privilege.57.1
When the therapist-patient privilege is invoked by a witness to bar discovery of potentially relevant evidence in a criminal proceeding, the court must balance the witness’s privilege against the defendant’s constitutional right to confront witnesses, such that an in camera review of the records may be appropriate upon a (i) a compelling basis for the request, (ii) a plausible showing that the records are material and relevant, and (iii) a focused demand on specific records.57.2
36. See Hollenbacher v. Bryant, 30 A.2d 561, 562 (Del. Super. 1943). Prior to the adoption of D.R.E. 503, the physician-patient privilege was pursuant to 24 Del. C. § 1704(g), and the psychologist-patient privilege was pursuant to 24 Del. C. § 3534.
37. D.R.E. 503(b).
38. Monsanto Co. v. Aetna Casualty & Surety Co., C.A. No. 88C-JA-1 18, slip op. at 5, Ridgely, J. (Del. Super. May 26, 1992).
39. D.R.E. 503(a)(3).
40. State v. Hinson, No. 1N90-05-1246, slip op. at 2, Babiarz, J. (Del. Super. May 15, 1991).
41. D.R.E. 503(a)(4).
42. State v. Shields, 586 A.2d 655, 659 (Del. Super. 1990).
43. D.R.E. 503(a)(4).
44. D.R.E. 503(a)(5).
44.1. Holder v. State, 692 A.2d 882, 887 (Del. 1997).
45. D.R.E. 503(c).
46. Shaw v. Metzger, C.A. No. 77C-DE-10l, slip op. at 4, Walsh, J. (Del. Super. Nov. 22, 1982).
47. Monsanto Co. v. Aetna Casualty & Surety Co.,C.A. No. 88C-JA-118, slip op. at 5, Ridgely, J. (Del. Super. May 26, 1992).
47.1. Secrest v. State, 679 A.2d 58, 62-63 (Del. 1996).
48. D.R.E. 503(d)(1).
49. D.R.E. 503(d)(2). See also McKinney v. State, 466 A.2d 356, 361 (Del. 1983) (communications in connection with a court-ordered examination for the purpose of determining competency to stand trial may not be introduced at trial to prove guilt).
50. D.R.E. 503(d)(3).
51. State v. Shields, 586 A.2d 655, 658 (Del. Super. 1990).
52. Green v. Bloodsworth, 501 A.2d 1257, 1258 (Del. Super. 1985).
53. Green v. Bloodsworth, 501 A.2d 1257, 1258 (Del. Super. 1985).
53.1. D.R.E. 503(d)(4).
53.2. D.R.E. 503(d)(5). This rule existed at common law before its codification in 2001, based on the duty of health care providers to exercise reasonable care in the treatment and discharge of patients to protect against reasonably foreseeable events, including, if necessary, warning potential victims when the provider knows that the patient’s dangerous propensities present an unreasonable risk of harm to others. Bright v. State, 740 A.2d 927, 931 (Del. 1999).
53.4. D.R.E. 503(d)(6).
54. D.R.E. 503(d)(7). See also Law v. Developmental Child Care, Inc., 523 A.2d 557, 559-60 (Del. Super. 1987); State v. Hinson, No. 1N90-05-1246, slip op. 2-3, Babiarz, J. (Del. Super. May 15, 1991).
55. Monsanto Co. v. Aetna Casualty & Surety Co., C.A. No. 88C-JA-118, slip op. at 5-6, Ridgely, J. (Del. Super. May 26, 1992).
56. State v. Rodgers, Nos. 1K89-04-0032-0037 & 1K89-05-0833, slip op. at 3-4, Steele, J. (Del. Super. May 11, 1990).
57. State v. Rodgers, No. 1K89-04-0032-0037 & 1K89-05-0833, slip op. at 3-4, Steele, J. (Del. Super. May 11, 1990).
57.1. Secrest v. State, 679 A.2d 58, 62-63 (Del. 1996).
57.2. Burns v. State, 968 A.2d 1012, 1024-26 (Del. 2009). See also State v. Patterson, Nos. K93-09-0065, K93-09-0069, K93-09-0070, K93-10-0188, Terry, J. (Del. Super. May 1, 1998).
© 2010 David L. Finger