Bar Exam — MBE (Multistate Bar Exam)EvidenceMedium
In a medical malpractice lawsuit, the plaintiff's attorney attempts to call the defendant-physician's former nurse to testify about confidential statements the physician made to the nurse regarding the plaintiff's treatment. The defendant's attorney asserts physician-patient privilege. How should the court rule?
- AOverruled, because physician-patient privilege generally does not apply in federal court unless state law provides it.
- BOverruled, because the privilege only applies to statements made by the patient to the physician, not vice versa.
- CSustained, because the nurse is an agent of the physician.
- DSustained, because the statements are protected by physician-patient privilege.
Show answer & explanationAnswer & explanation
Correct answer: A. Overruled, because physician-patient privilege generally does not apply in federal court unless state law provides it.
In federal courts, privileges are generally governed by federal common law. Federal common law does not recognize a general physician-patient privilege. Such a privilege typically only applies in federal court if state law supplies the rule of decision regarding an element of a claim or defense.
Why the other options are wrong
- B. The privilege, where it exists, generally covers communications between patient and physician for treatment, and sometimes internal discussions among the medical team, but the primary barrier here is the federal forum.
- C. While the nurse could be an agent, the core issue is the existence of the privilege itself in federal court.
- D. This would be correct in many state courts, but not typically in federal court unless state law applies.
Physician-Patient Privilege (Federal vs. State)
A privilege, recognized in most states but generally not by federal common law, that protects confidential communications between a patient and a physician made for the purpose of medical diagnosis or treatment.
- Exists in most state jurisdictions by statute.
- Generally NOT recognized under federal common law (FRE 501).
- In federal court, state law on physician-patient privilege applies only when state law supplies the rule of decision regarding an element of a claim or defense (e.g., diversity cases).
- Similar to attorney-client, it belongs to the patient and can be waived.
Memory trick: Privileges Protect Private Personal Professional Secrets.