When doctors can keep patient talks private

The rule makes clear that privileged communications may relate to the diagnosis or treatment of "physical, mental, or emotional condition[s], including alcohol or drug addiction." Designed to encourage free disclosure between physician and patient, the privilege belongs only to the patient and may be invoked by the physician "only on behalf of the patient." Subsection (d)(4) conforms to the 1978 amendment to the predecessor statute, Hawaii Rev. Stat. §621-20.5 (1976) (repealed 1980). The federal common law does not recognize the privilege. In Gretsky v. Basso, 136 F. Supp. 640, 641 (D. Mass. 1955), the court upheld admission of hospital patients' records against a claim of privilege, ruling: "[T]his is a federal administrative proceeding and state evidentiary restrictions [do] not apply." In Felber v. Foote, 321 F. Supp. 85, 87-88 (D. Conn. 1970), the court said: "[T]he common law knew no privilege for confidential information imparted to a doctor.... Whatever protection there is against disclosure of a patient's communications to his physician is afforded solely by the law of the individual states." RULE 504 SUPPLEMENTAL COMMENTARY The Act 134, Session Laws 2002 amendment adds subsections (d)(5) and (d)(6), which are two new exceptions to the privilege coverage of this rule. Subsection (d)(5), entitled "Furtherance of crime or tort", bears close kinship to the counterpart crime-fraud exception to the lawyer-client privilege, Rule 503(d)(1). See the 1992 supplemental commentary to Rule 503, explaining that "the paramount policy of the crime-fraud exception is to thwart the exploitation of legal advice and counseling in furtherance of unlawful goals". A similar policy, applicable to physicians' services, informs this exception. This new exception lifts the privilege shield from communications that reflect a patient's effort to exploit a physician's services for a criminal or tortious purpose, such as the unlawful acquisition of controlled drugs and substances. As the commentary to Cal. Evid. Code §997, which is similar, points out: "[T]here is no desirable end to be served by encouraging such communications." Subsection (d)(6), entitled "Prevention of crime or tort", is intended to allow physicians to make disclosures to avoid tort liability of the sort imposed by Tarasoff v. Regents, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976) (psychotherapist's common law duty to warn foreseeable victims of a patient the therapist knows to be dangerous and likely to harm those victims). Hawaii will likely embrace Tarasoff, see Lee v. Corregedore, 83 H. 154, 925 P.2d 324 (1996), declining to create a duty to prevent a patient's suicide but recognizing a psychotherapist's duty to "disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault...." Hawaii added a Tarasoff exception to its lawyer-client privilege in 1992, Rule 503(d)(2), and the present amendment extends the same protection to physicians.