Rule 504  Physician-patient privilege. 
(a)  Definitions.  As used in this rule:



(1)  A "patient" is a person who consults or
is examined or interviewed by a physician.



(2)  A "physician" is a person authorized,
or reasonably believed by the patient to be authorized, to practice medicine in
any state or nation.



(3)  A communication is "confidential" if
not intended to be disclosed to third persons other than those present to
further the interest of the patient in the consultation, examination, or
interview, or persons reasonably necessary for the transmission of the
communication, or persons who are participating in the diagnosis and treatment
under the direction of the physician, including members of the patient's
family.



(b)  General rule of privilege.  A patient has
a privilege to refuse to disclose and to prevent any other person from
disclosing confidential communications made for the purpose of diagnosis or
treatment of the patient's physical, mental, or emotional condition, including
alcohol or drug addiction, among oneself, the patient's physician, and persons
who are participating in the diagnosis or treatment under the direction of the
physician, including members of the patient's family.



(c)  Who may claim the privilege.  The
privilege may be claimed by the patient, the patient's guardian or conservator,
or the personal representative of a deceased patient.  The person who was the
physician at the time of the communication is presumed to have authority to
claim the privilege but only on behalf of the patient.



(d)  Exceptions.



(1)  Proceedings for hospitalization.  There is no
privilege under this rule for communications relevant to an issue in
proceedings to hospitalize the patient for mental illness or substance abuse,
or in proceedings for the discharge or release of a patient previously
hospitalized for mental illness or substance abuse.



(2)  Examination by order of court.  If the court
orders an examination of the physical, mental, or emotional condition of a
patient, whether a party or a witness, communications made in the course
thereof are not privileged under this rule with respect to the particular
purpose for which the examination is ordered unless the court orders otherwise.



(3)  Condition an element of claim or defense.  There
is no privilege under this rule as to a communication relevant to the physical,
mental, or emotional condition of the patient in any proceeding in which the
patient relies upon the condition as an element of the patient's claim or
defense or, after the patient's death, in any proceeding in which any party
relies upon the condition as an element of the party's claim or defense.



(4)  Proceedings against physician.  There is no
privilege under this rule in any administrative or judicial proceeding in which
the competency, practitioner's license, or practice of the physician is at
issue, provided that the identifying data of the patients whose records are
admitted into evidence shall be kept confidential unless waived by the
patient.  The administrative agency, board, or commission may close the
proceeding to the public to protect the confidentiality of the patient.



(5)  Furtherance of crime or tort.  There is no
privilege under this rule if the services of the physician were sought,
obtained, or used to enable or aid anyone to commit or plan to commit what the
patient knew or reasonably should have known to be a crime or tort.



(6)  Prevention of crime or tort.  There is no
privilege under this rule as to a communication reflecting the patient's intent
to commit a criminal or tortious act that the physician reasonably believes is
likely to result in death or substantial bodily harm. [L 1980, c 164, pt of §1;
gen ch 1985; am L 2002, c 134, §1]



 



RULE 504 COMMENTARY



 



  This rule is based upon Uniform Rule of Evidence 503
and the former statute, Hawaii Rev. Stat. §621-20.5 (1976, Supp. 1979)
(repealed 1980) (originally enacted as L 1972, c 104, §1(o); am L 1978, c 52,
§1), which codified Hawaii's physician-patient privilege.



  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.



 



Case Notes



 



  Physician-patient privilege applicable in criminal cases.  66
H. 448, 666 P.2d 169.



  Under subsection (d), doctor's communications with U.S.
Attorney, engaged in pursuant to federal district court order requiring that
patient be subjected to physical examination, were not privileged.  89 H. 188,
970 P.2d 496.



  Defendant's toxicology report was a privileged
physician-patient communication; admission of report into evidence was not
harmless beyond a reasonable doubt.  102 H. 449, 77 P.3d 940.