As discussed in my previous post, “legal privileges” may impact what communications can be compelled to be disclosed in discovery or a court proceeding; for example, questions that must be answered or documents that must be produced. If something is “privileged”, that means you have the right to refuse to disclose that information or to stop its disclosure by another party. It may apply to both documents as well as to the content of verbal communications. 

Common forms of privilege include:  

  • Attorney-client privilege
  • Spousal privilege, i.e., marital communications privilege
  • Doctor-patient privilege
  • Clergy-communicant privilege
  • 5th Amendment privilege, i.e., privilege against self-incrimination

 This article will address the third type of privilege: doctor-patient privilege.

 Doctor-Patient Privilege 

Doctor-patient privilege relates to communications a person has with their doctor or other medical professionals. This privilege comes into play frequently in the context of family law litigation for the simple and obvious reason that such cases often center around the mental and physical health of the parties. 

Doctor-patient privilege is similar to attorney-client privilege, in that it protects communications between clients and third-party professionals and is intended to promote free communication so that optimal services can be rendered; but it is far less absolute.  

In Virginia, the contents of communications with your doctor, counselors, social workers, and psychologists, and associated medical treatment records, are privileged unless “the physical or mental condition of the patient is at issue in a civil action.” Virginia courts may also order disclosure of medical records or permit a doctor to testify “when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice.”  

The mental and physical health of the parties can be relevant to many issues in a domestic case and are in fact factors that a court must consider by law in dividing property, determining child custody, and awarding child and spousal support. Thus, these communications may be compelled if the court finds it necessary to do so. 

While the exceptions to this privilege are broad, and arguably focused on the exact types of family law cases our firm specializes in, there are important limitations. Virginia law provides that, “No disclosure of diagnosis or treatment plan facts communicated to, or otherwise learned by, such practitioner shall occur if the court determines, upon the request of the patient, that such facts are not relevant to the subject matter involved in the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence.” So, if a court finds a party is using requests for medical information to simply harass or intimidate, intrude upon another’s privacy, or drum up new legal claims, then the court can limit the intrusion to ensure disclosures relate only to relevant matters and otherwise admissible evidence.  

As discussed in the previous posts on this topic, there are exceptions and nuances to many of the ideas discussed here that cannot be fully explored in this short article. Hence, this blog series has only provided a basic introduction to some of the key terms and how privilege generally may come into play within the context of your domestic law case. As such, we highly recommend you seek advice from an attorney that can help you with your case, regardless of your circumstances. This is a difficult time in your life, and it is crucial that you have an experienced lawyer in your corner who will listen to your needs and respond with compassionate, smart, and cost-effective solutions with one goal in mind: protecting what matters most. Our attorneys are skilled in advising clients on matters such as the grounds for divorce, child custody and visitation, spousal support and child support, and the division of marital property. 

Contact Us Today 

Contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com, to connect with an experienced attorney in your area who can guide you through the process.

Maxwell Hand

Maxwell Hand

Associate Attorney

Maxwell Hand was born and raised in Pittsburgh, Pennsylvania. He went to college at the University of Notre Dame and graduated with a B.S. in Environmental Science. After college, Max worked for ten years in FDA compliance, product safety, and quality assurance fields, including six years at the US headquarters for an international retail company based in Germany. During that time, he attended the George Washington University Law School, going to classes in the evening while working full time. Following his passion for helping others, Max transitioned out of the corporate world and into family law. To learn more about Mr. Hand, click here.