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Can Your Doctor Testify Against You at Trial?

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By Christopher Coble, Esq. on April 13, 2015 1:03 PM

We've all heard of doctor-patient confidentiality or doctor-patient privilege many times on television.

We know that doctors can't disclose our private medical information without our permission. However, as with all things law related, there are exceptions. Sometimes doctors are required by state law to disclose certain confidential information.

Is there an exception that will allow your doctor to testify against you at trial?

Doctor-Patient Privilege

Doctor-patient privilege is governed by state laws, so it can vary from state to state.

Doctor-patient privilege is a rule of evidence that prohibits doctors from disclosing private patient information to a third party without the patient's permission. This privilege covers medical diagnosis, medical documents, any information the patient discloses in the course of treatment, and even the doctor's opinions about the patient's condition. This privilege is in place to ensure patients feel comfortable being completely honest with their treating physician.

However, the privilege is not absolute. Some states require doctors to report gunshot wounds, venereal disease, or suspected domestic or child abuse. In some cases, doctors may be required to disclose patient's threats to harm either themselves or others. In the case of James Holmes, the man who killed several people at a movie theater, his psychiatrist did not violate doctor-patient privilege when she alerted campus police about Holmes' threats.

Testifying at Trial

Doctor-patient privilege would generally prevent a doctor from testifying at trial. However, you can waive this privilege to allow your doctor to testify on your behalf.

You should think very carefully before deciding to waive your privilege. Once the privilege is waived, the opposing side can then ask your doctor about information that was previously privileged. You will not be able to reassert privilege.

For example, at trial, you ask your doctor to testify to how much a recent car accident aggravated your prior back injury. Since you've opened the door on the issue of your back injury, the opposing side can now ask your doctor questions about that prior back injury.

Breach of Doctor-Patient Privilege

Without a waiver, doctor-patient privilege continues indefinitely. Like attorney-client privilege, the doctor must keep information confidential even after you stop seeing him. The privilege will last even after you die. If the doctor testifies against you even though you did not waive the privilege, he has breached doctor-patient privilege. You may have a claim for malpractice or invasion of privacy or related causes of action.

If you are considering having your doctor testify at trial on your behalf, an experienced attorney will be able to help you consider your options and protect your privacy.

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