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Family Law Corner: The Physician-Patient Privilege and the Constitutional Right to Privacy is Not Absolute: Your Child's Best Interest Comes First

In a recently published case from the Second District, Manela v. Superior Court (Manela)(September 22, 2009), the Court held that when Husband went to a doctor’s appointment with Wife and discussed his seizure disorder, he could not later claim physician-patient privilege, marital privilege or privacy in his custody battle with Wife. In holding that Husband had no grounds to prevent disclosure, the Court gave married couples sitting in doctors’ offices reason to be concerned and attorneys something to think about.

During the parties’ divorce proceeding, Wife sought sole legal custody of their little boy, asserting that Husband’s seizure disorder compromised the boy’s safety. She asked the judge to limit Husband’s visitation with no driving or overnights. Husband responded with a request for joint physical custody and testified that he was only being treated for a “tic” disorder which posed no safety concern to their child.

Wife countered that she knew Husband had been treated for a seizure disorder; that the seizures had a long duration, left Husband unable to speak and often caused vomiting. Wife subpoenaed Husband’s medical records to back up her testimony.

Husband immediately moved to quash, claiming physician-patient privilege, marital privilege and privacy. The trial court granted Husband’s motion and quashed the subpoenas. Wife filed a writ and played her trump card: she had been at a doctor’s appointment with Husband in 2007 where Husband had given the doctor a “detailed account” of the seizures.

The Justices bought Wife’s argument: she was at the doctor’s appointment, so Husband waived the physician-patient privilege and the marital communications privilege does not apply in proceedings brought by one spouse against the other. Also, Husband had “tendered the issue of his condition:” he had affirmatively stated that he did not have a seizure disorder that could be dangerous to their son. Finally, regarding Husband’s right to privacy, the panel said that right was not absolute. It was outweighed by the state’s compelling interest in protecting the best interest of the little boy.