Legal Memorandum: Waiver of Physician-patient Privilege

Issue: In the District of Columbia, if a psychiatrist or psychologist writes an affidavit regarding a party’s integrity, based on knowledge of party garnered in therapy, does party waive doctor-patient privilege by introducing it?

           In the District of Columbia, physician-patient privilege is a purely statutory creation.  Richbow v. District of Columbia, 600 A.2d 1063, 1068 (D.C. 1991); Clifford v. United States, 532 A.2d 628, 637 (D.C. 1987); see D.C. Code § 14-307 (2000).  The statute provides:

In the . . . District of Columbia courts a physician or surgeon or mental health professional . . . may not be permitted, without the consent of the person afflicted, or of his legal representative, to disclose any information, confidential in its nature, that he has acquired in attending a client in a professional capacity and that was necessary to enable him to act in that capacity, whether the information was obtained from the client or from his family or from the person . . . in charge of him.

D.C. Code § 14-307.  A "mental health professional" is defined broadly, including persons licensed to practice medicine or psychology, professional marriage, family, or child counselors, or "[a]ny person reasonably believed by the client to be a mental health professional within the meaning of [the categories described in the statutory definition]."  D.C. Code § 6-2001 (a, b, d, g).  Thus, any communication between the party and any licensed or otherwise recognized mental health professional, whether a psychiatrist or psychotherapist, will be equally protected by the statutory privilege.

District of Columbia law contains scant discussion of which acts will constitute waiver of the physician-patient privilege.  Calling a witness to testify about a psychological evaluation constitutes constructive waiver because the party has put […]