ONE OF THE most critical aspects of the physician/patient relationship is the understanding that the patient’s health information will not be disclosed outside the scope of that relationship. The notion that a patient’s medical information will be protected from disclosure is the hallmark of HIPAA—referred to as “Protected Health Information.” If patients wish to have their treatment information disseminated to a third party, the patient must sign an authorization agreeing to that disclosure.
But, despite this notion of protection, is there actually a legally protected physician/ patient privilege?
The answer, perhaps counterintuitively, is no. There is no general physician/patient privilege in Kentucky’s statutory law or the Kentucky Rules of Evidence. In other words, no testimonial privilege exists in Kentucky for communications made between a patient and physician for the purposes of medical treatment. [See Caldwell v. Chauvin, 464 S.W.3d 139, 155 (Ky. 2015).] This does not mean that information shared by a patient can be readily shared; physicians can be disciplined by the Kentucky Board of Medical Licensure for willfully violating a confidential communication. [KRS 311.595(16).]
Lack of Privilege in a Lawsuit Context
The practical consequences of this lack of physician/patient privilege are highlighted in the context of a lawsuit. For instance, in a lawsuit filed by a plaintiff for medical malpractice, the plaintiff is directly placing his or her physical health at issue. Accordingly, attorneys are permitted to request and obtain copies of medical records for purposes of reviewing and analyzing a plaintiff’s prior health history, as well as the relevant treatment at issue in the lawsuit. A court order is not required to obtain general medical records.
Likewise, Kentucky Courts generally permit the use of ex parte communications between attorneys and the treating providers of a plaintiff. This means that, with express permission from a Kentucky Court, attorneys may request to speak with a physician who has treated the plaintiff. It is important to note that these ex parte orders do not require you to speak to the requesting attorney. Further, it is often the case that treating providers, particularly those whose treatment is relevant to the issue in the lawsuit, can be and often are identified as treating expert witnesses. Expert witnesses are subject to depositions and may be asked to testify at trial about their treatment of a patient. In these instances, physicians cannot claim “privilege” over conversations with a patient, as no such privilege exists.
Exception – The Psychotherapist/ Patient Privilege
Despite the lack of physician/patient privilege, Kentucky does recognize a psychotherapist/patient privilege. Kentucky Rule of Evidence 507 recognizes this privilege and protects communications made between a patient and his or her “psychotherapist” for the purpose or treatment of a mental condition. Under KRE 507, the definition of “psychotherapist” includes licensed physicians engaged in the diagnosis or treatment of a mental condition, psychologists, licensed clinical social workers, or registered nurses or advanced practice registered nurse practitioners who practice psychiatric or mental health nursing.
The reason for the existence of a psychotherapist/patient privilege as opposed to a physician/patient privilege historically goes to the need for candor, confidence, and trust between psychotherapist and patient. Where physical medicine may be successful with a physical exam or other objectively supplied information, “effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make frank and complete disclosure of facts, emotions, memories, and fears…” Jaffee v. Redmond, 518 U.S. 1, 10 (1996).
Accordingly, accessing mental health records of a plaintiff in a medical malpractice case is often more difficult than accessing general medical records, as a showing must be made that an exception to the psychotherapist/patient privilege is met for dissemination of those records. One such exception is “if the patient is asserting that patient’s mental condition as an element of a claim or defense.” KRE 507(c)(3).
This again becomes relevant in the context of a medical malpractice lawsuit. In the context of medical malpractice litigation, the Supreme Court of Kentucky has ruled that when a plaintiff puts his or her mental condition at issue or makes a claim for mental anguish, that effectively amounts to a waiver of the psychotherapist/patient privilege. [See Dudley v. Stevens, 338 S.W.3d 774, 777 (Ky. 2011).] The reasoning behind this holding is that it would be fundamentally unfair to permit a plaintiff to rely upon his or her mental health records to prove a claim of mental anguish while simultaneously denying the opposing party the opportunity to review those same records. Id.
Be Aware of Privilege Law
In sum, Kentucky law varies substantially in its rules about privileges for medical providers. As discussed, physicians (other than those engaged in the practice of mental health) do not enjoy a testimonial privilege in communications with their patients for the purpose of providing medical treatment. On the other hand, mental health professionals, or “psychotherapists” as they are recognized under the Kentucky Rules of Evidence, enjoy a robust privilege. Regardless of privilege status, you should always be aware that what you document about a patient may not necessarily be kept between you and the patient, but between you, the patient, several attorneys, and a jury.