Privileged Communications: Fact or Myth?

A Nevada man was convicted of driving under the influence of a controlled substance, based, in part, on evidence from a paramedic who treated him after a motor vehicle collision. The medic testified the man told him he had smoked marijuana before the accident.

   The man appealed his conviction on the grounds that his statement to the paramedic could not be used against him because it was protected by Nevada's doctor-patient privilege.

   On June 2, 2011, the Supreme Court of the State of Nevada denied his appeal and held that there is no EMT/paramedic patient privilege in the state of Nevada.¹

   This news caused consternation, concern and confusion in the EMS community, since many assumed that anything a patient tells an EMS provider would be privileged and could not be divulged in court. Many wondered whether HIPAA was violated.

   The first thing to understand is that this case is based on Nevada law and applies only in the state of Nevada. It has no application outside that state.

Ethics vs. Privilege

   Few would dispute that it is unethical for a medic to spread confidential information learned in the course of treating a patient; however, ethical tenets lack the force of law except where specifically incorporated into law. For example, in most states the Lawyers' Code of Ethics has the force of law, but there are no such laws covering ethics in EMS.

   A privileged communication is "a communication between parties to a confidential relation (as between physician and patient) such that the recipient cannot be legally compelled to disclose it as a witness."²

   There were no doctor-patient privileges in the common law.³ Obviously, there were no paramedics in England when the common law was developing, so if a privilege exists, it must be created by statute. Most states have enacted doctor-patient privilege statutes, but they vary somewhat in their provisions. Section 501 of the Federal Rules of Evidence recognizes no physician-patient privilege in cases arising under federal law.

   Nevada's doctor-patient privilege is codified at NRS 49.215-.245. Section 49.225 defines the Nevada doctor-patient privilege as follows: A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among the patient, the patient's doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient's family.

   There is no EMT/paramedic-patient privilege statute in Nevada; however, the appellant argued that an EMT/paramedic is one who is "participating in the diagnosis or treatment under the direction of the doctor."

   The Nevada Supreme Court rejected this argument and held that the Nevada legislature has not expanded the definition of "doctor" to include medics, and, in this case, the EMTs were not working under the supervision of a physician or surgeon in the sense intended by the statute. In the court's opinion, a closer relationship, such as that of an office nurse, would be required.

   The court found that the paramedic was acting as an independent EMT since "there was no doctor present at the scene and [he] was not acting under the supervision or direction of a doctor in a doctor-patient relationship with [appellant]."

   While acknowledging that a policy argument can be made for medic-patient privilege, it is up to the legislatures, not the courts, to provide such. Courts in Louisiana, New Hampshire and Washington have made similar rulings based upon their respective state laws.

   HIPAA was neither argued nor discussed in the Nevada Supreme Court's opinion. However, the Privacy Rule in HIPAA is clear that protected health information received by a healthcare provider can be disclosed in a judicial or administrative proceeding if the request for the information is through an order from a court or administrative tribunal.⁴ Covered entities may also disclose protected health information to law enforcement officials for law enforcement purposes as required by law, including court orders, court-ordered warrants, subpoenas and administrative requests.⁵

   In the opinion of the Nevada Supreme Court, the paramedic gained the information as a routine part of history-taking and presumably documented it. However, he chose to disclose the information to a state policeofficer who was investigating the case, and that disclosure became the basis for the policeofficer's request that a drug test be done. The disclosure was not in response to a subpoena, nor was there a judicial or administrative proceeding in progress at that time. It may be argued that this disclosure was a HIPAA violation; however, HIPAA is not a rule of evidence. Assuming that the medic committed a HIPAA violation, it would not be a ground for excluding the testimony, since there is no recognized privilege applying to such communications.

Confidentiality Laws

   Many states have enacted so-called "patient confidentiality" laws that govern a medic's disclosures. These vary in structure and application. Some of them may create a sort of privilege, while others simply attempt to govern the medic's conduct. An example is found in Texas law:

   Sec. 773.091. CONFIDENTIAL COMMUNICATIONS: (a) A communication between certified emergency medical services personnel or a physician providing medical supervision and a patient that is made in the course of providing emergency medical services to the patient is confidential and privileged and may not be disclosed except as provided by this chapter.

   Sec. 773.092. EXCEPTIONS: (a) Exceptions to the confidentiality or privilege in court or administrative proceedings exist: (6) when the proceeding is a criminal prosecution in which the patient is a victim, witness or defendant.

   It seems that under this law, the communication would be allowed in court.

The Bottom Line

   The paramedic's decision to disclose what his patient told him was seemingly a moral and ethical one, not a legal one. One can argue both ways that he should or should not have disclosed the communication. On the one hand, the appellant had caused a serious accident and was hurt himself. There is a public interest in justice being done. On the other hand, it can be argued that patients have a right to trust their caregivers with what they intend to be confidential information.

   At present, I know of no absolute EMT/paramedic-patient privilege statutes in existence in the United States. Each person must make his own moral and ethical judgment about disclosure. The HIPAA Privacy Rule should be followed, and information only disclosed under one of its exceptions.

References

   1. Rogers v. State, 127 Nev. Adv. Op. No.25, June 2, 2011, In the Supreme Court of the State of Nevada, No. 54913.

   2. Merriam-Webster Online Dictionary. www.merriam-webster.com/medical/privileged%20communication.

   3. Legal Medicine, 7th ed., American College of Legal Medicine, Mosby Elsevier, p. 354.

   4. 45 C.F.R. § 164.512(e).

   5. 45 C.F.R. § 164.512(f).

William E. (Gene) Gandy, JD, LP, has been a paramedic and EMS educator for over 30 years. He has implemented a two-year associate's degree paramedic program for a community college, served as both a volunteer and paid paramedic, and practiced in both rural and urban settings. He lives in Tucson, AZ.