By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
Texas Rule of Evidence 509 governs the physician- patient privilege. As with all privileges, it acts to protect communications that are confidential between a physician and a patient “relative or in connection with any professional services rendered by a physician to the patient.”
Tex.R.Evid. 509(b), however, practically negates the physician- patient relationship in criminal cases. That section bluntly says, “There is no physician-patient privilege in criminal proceedings.”
The only small exception under 509(b) is that communications to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for drug or alcohol abuse is not admissible in a criminal proceeding. This is obviously to encourage people who need help for substance abuse to voluntarily get help without recourse.
Police and/or prosecuting agencies can and do regularly subpoena medical records in criminal cases. Examples are blood samples taken during medical treatment after a car crash where alcohol or substance abuse is suspected. Other examples include statements made by pharmacy personnel in the reporting or allegation of prescription fraud.
Federal law which protects patients privacy under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a recognized exception in Texas for law enforcement purposes when they are issued a grand jury subpoena. This means that you can’t rely on HIPAA laws to protect your privacy with doctors depending on how the police or prosecuting agency try to attain medical records.
The bottom line — communications between patient and doctor are not legally protected in criminal proceedings. The privileges largely apply in civil cases, but not criminal.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific situation you should consult an attorney directly.