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Waiver of Confidentiality or Privilege

A privilege belongs to the patient, not the doctor. Generally, only a patient may waive the privilege. A patient’s written consent is needed before a doctor can release any information about the patient. But there are other ways in which a patient may “waive” the privilege of confidentiality. For example, if a patient brings a friend into the examination or consultation with the doctor, the friend may be forced to testify as to what transpired and what was said. (On the other hand, nurses or medical assistants in the room are “extensions” of the doctor for purposes of confidentiality and are covered by the privilege.) The patient may also waive the privilege by testifying about his or her communications with the doctor or about his or her physical condition at the time.

Another common way in which a patient waives the confidentiality of the privilege is by filing a law-suit or claim for personal injury. By doing so, the patient has put his or her physical condition “at issue” in the lawsuit. Therefore, the law presumes that the patient has waived all confidentiality regarding his or her medical condition, and there is an implied authorization to the patient’s doctor for disclosure of all relevant information. If a patient fails to object to a doctor’s testimony, the patient has waived the privilege as well.

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