I am being sued for a claim of failed back surgery. The plaintiff had an IME by my side’s doctor, and the complaints of pain were about what you would expect—hard to prove or disprove. However, the plaintiff mentioned to the doctor that she was “gonna get a hot car when I get a pile of money” from the case. I want the doctor to testify about this because it can really show the jury that this is a shake-down. The plaintiff is trying to block that. Can she do so?

The issue here is whether there is physicianpatient privilege in this setting. Physicianpatient privilege is a sub-set of this general stance on physician-patient confidentiality and refers to the ability of a patient to bar their doctor from testifying about them in a legal proceeding.

You did not say whether you are being sued in state or federal court, which matters, as the privilege is not recognized under the Federal Rules of Evidence. It may also be only allowed to a limited extent under the laws of your state.

However, let’s just look at whether, assuming that it is potentially extant in the case, it could apply here.

The critical point for it to apply is that the doctor whom the patient wants to restrain from speaking must have been the patient’s, well, doctor, and here that is not the case. Not only was the plaintiff not seeking diagnosis or treatment from the doctor performing the IME, he was actually examining her for her adversary. The physicianpatient relationship that underpins a duty of confidentiality and that gives rise to the privilege was completely absent .

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Even if the plaintiff did not know the legal issues, she likely—since such are routine in IME’s—signed a form indicating that she understood that a physician-patient relationship was not created by the examination. The plaintiff may try to get the judge to rule that this comment is “more prejudicial than probative” —in other words, that it will turn the jury against her more than it will add to a search for the truth—but that will truly be a last-ditch ploy to keep it out.

It is likely coming in.

This article was written by Dr. Medlaw, a physician and medical malpractice attorney. It originally appeared on SERMO, which retains all rights to it.