Rule 503 Privilege between Patient and Physician or Psychotherapist

Advisory Committee Historical Note

Effective July 1, 2017, the Advisory Committee Note to Rule 503 was amended to substitute a citation to the new Rule of Criminal Procedure for a superseded Uniform Rule of Circuit Court Practice.

Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.”

Effective May 24, 2004, Rule 503(d)(4) was adopted and corresponding changes were made to the Advisory Committee Note, making clear that no physician-patient privilege exists in child custody or similar proceedings. 870- 873 So. 2d XIX (West Miss. Cas. 1994).

Effective October 13, 1992, Rule 503(f) was amended to state that the rule is inapplicable to contexts other than hearings or discovery proceedings and to delete reference to workers’ compensation proceedings. 603-605 So. 2d XXI (West Miss. Cas. 1993).

Advisory Committee Note

The language of Rule 503 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. In Rule 503(a)(4)(C), “diagnosis or treatment” replaces “diagnosis and treatment,” to conform to Mississippi law, including the statement of privilege in subdivision (b). These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Subdivision (a) defines the terms “patient,” “physician,” “psychotherapist,” and “confidential communication.” Existing Mississippi law is codified at M.C.A. § 13-1-21. The existing statute is broader than Rule 503(a) in that it extends the privilege to physicians, osteopaths, dentists, hospitals, nurses, pharmacists, podiatrists, optometrists, and chiropractors. M.C.A. § 73-31-29 extends the privilege to psychologists. Additionally, under existing Mississippi law no allowance has been made for an erroneous belief that the treating individual was a physician. Rules 503(a)(2) and (3) make such an allowance.

Rule 503(a)(4) is essentially a codification of existing state practice. It is compatible with the definition of “confidential communication” under Rule 502 (the attorney-client privilege.)

Rule 503(b) is a statement of the privilege rule. It, too, is compatible with the statement of the attorney-client privilege in Rule 502. The public policy protecting communications made about alcohol and drug addiction arises out of the current contemporary concern about these problems. By protecting these communications it is hoped that rehabilitation efforts will be encouraged.

Subdivision (c) is reflective of M.C.A. § 13-1-21. The privilege belongs to the patient, and only the patient can waive it.

Subdivision (d) excepts four instances from the privilege. The first exception concerns commitment proceedings. Existing law in Mississippi is structured so that such communications currently are not privileged. See M.C.A. § 41-21-67 et seq.

The second exception under subdivision (d) pertains to court-ordered physical or mental examinations. The exception is necessary for the effective utilization of this procedure. It is important to note that the exception is effective only with respect to the particular purpose for which the examination is ordered. No statement made by an accused in the course of an examination into competency to stand trial is admissible on the issue of guilt. See also MRCrP 12.4.

Under the third exception there is no privilege when a controversy develops between physician and patient, such as in a dispute over medical fees or medical malpractice.

Under subdivision (d)(4), when determining whether records are relevant to a custody, termination, or adoption action, some of the factors courts should consider include whether: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court ordered evaluations are an inadequate substitute; and (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.

Subdivision (e) is required by considerations of fairness and policy, and simply provides that the institution of a claim, either by delivery of written notice or by the filing of an action, operates to waive the privilege as to any medical information relevant to the claim.

The primary impact of subdivision (f) will be in personal injury actions, although the exception by its terms is not so limited. This subdivision, like the remainder of these rules, has no application outside the context of hearing or discovery processes in the Mississippi Rules of Civil Procedure and other rules of court. See Rules 101 and 1101. By virtue of this exception a party who seeks recovery of damages for a physical, mental or emotional injury waives the privilege for purposes of that action only and to the extent that he or she has put his or her physical, mental or emotional condition in issue by his or her pleadings. With respect to any aspect of the party’s physical, mental or emotional condition not put in issue by his or her pleadings, the privilege remains in full force and effect. Rules of Evidence by their definition govern the admissibility of evidence at trial. Subdivision (f) is not a procedural rule and cannot be used as such.

[Amended effective May 27, 2004; “Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.]