Tuesday, November 09, 2010

"The Good Wife" on physician/patient privilege

Part of the 9 Nov 2010 turned on whether the physician/patient privilege survived death, and whether the location (jurisdiction)
of the physician mattered.

In California: However, the Department points out that the physician-patient privilege survives death and the estate’s representative is the holder of the privilege. (Rittenhouse v. Superior Court (1991) 235 Cal.App.3d 1584, 1588.) Only the holder of the privilege may waive the privilege. (Evid. Code, §§ 912, subd. (a), 994, subds. (a), (b).)

From George Mason outline:
Generally: all but 10 states have a statutory physician-patient privilege. These statutes usually apply to:
A confidential communication
Made by a physician (including a psychiatrist
If made for the purpose of obtaining treatment, or diagnosis looking toward treatment.

One might think the privilege survived death, and the law of the location of the patient controlled.

Without looking into the details of Illinois law ("The Good Wife" takes place in Chicago), one might guess that the privilege did survive death AND was held by the administrator/executor of the estate. Thus, the doctor would not have been allowed to testify, counter to the events of the show. The later scenes in the show might also be contemplated.


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