As used in this act, (a) "patient" means a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of his physical or mental condition, consults a physician, or submits to an examination by a physician; (b) "physician" means a person authorized or reasonably believed by the patient to be authorized, to practice medicine in the State or jurisdiction in which the consultation or examination takes place; (c) "holder of the privilege" means the patient while alive and not under the guardianship of the guardian of the person of an incompetent patient, or the personal representative of a deceased patient; (d) "confidential communication between physician and patient" means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.

(b) N.J.S. 2A:84A-22.2 provides:

Except as otherwise provided in this act, a person, whether or not a party, has a privilege in a civil action or in a prosecution for a crime or violation of the disorderly persons law to refuse to disclose, and to prevent a witness from disclosing, a communication, if he claims the privilege and the judge finds that (a) the communication was a confidential communication between patient and physician, and (b) the patient or the physician reasonably believed the communication to be necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (c) the witness (i) is the holder of the privilege.

Background of the Privilege

As set forth in Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) Even prior to the enactment of the statutory privilege doctors were ethically restrained by the Oath of Hippocrates from violating the privacy of their patients by disclosing confidential information in the absence of legal compulsion. State v. Schreiber, supra, at 586-588; Hague v. Williams, supra at 332, 335; Lazorick v. Brown, 195 N.J. Super. 444, 451 (App. Div. 1984).

This ethical obligation is now embodied in Section 9 of the Principles of Medical Ethics of the American Medical Association. In this spirit law enforcement officers were cautioned in State v. Schreiber, supra, at 587, "not to cajole hesitant hospital doctors to violate confidences absent some preceding justification."

Nevertheless, even without testimonial compulsion, it was held in Hague v. Williams, supra, that information concerning a patient's medical condition could be disclosed to someone having a legitimate interest in the subject "where ... the physical condition of the patient is made an element of a claim." Id. at 336. See Kurdek v. West Orange Educ. Bd., 222 N.J. Super. 218, 224 (Law Div. 1987).

The privilege is designed to enable a patient to secure medical services "without fear of betrayal and unwarranted embarrassing and detrimental disclosure in court of information which might deter him from revealing his symptoms to a doctor to the detriment of his health." Stempler v. Speidell, 100 N.J. 368, 374 (1985); Kurdek v. West Orange Educ. Bd., supra, at 223-224.

The New Jersey Supreme Court has recognized that when a law enforcement agency is investigating allegations of medical fraud, it may have to give notice to holders of the physician-patient privilege before it can subpoena records deemed necessary for their investigations. State v. Dolinger, 96 N.J. 236, 254 (1984). R. 4:14-7(c), the rule of practice governing the use of a subpoena for taking depositions, is directed toward preventing disclosure of privileged information by an expert such as a doctor without notice to other parties. Vasquez v. YMCA, 263 N.J. Super. 408, 411 (Law Div. 1992).

Even after Schreiber, a driver suspected of having an elevated blood alcohol level does not necessarily lose all interest in the confidentiality of his medical records. Where a blood test was taken for diagnostic rather than investigative purposes and where investigation is of death by auto charges or any other crime or disorderly persons offense, the privilege would still apply under the restrictions established by State v. Dyal, 97 N.J. 229 (1984).

Also, the term "confidential communication" is defined as including information obtained by an examination of the patient. State, In Interest of M.P.C., supra. Thus, the privilege is not confined solely to oral or written communications; if there was an expectation of confidentiality, "[a] physician's impressions secured by any of his senses may be privileged against disclosure." State v. Phillips, supra at 542, N. 4.

It should be noted that the privilege encompasses not only the claimant's ability to refuse to disclose communications, but also the claimant's ability to prevent a witness from making such disclosure. Thus, where the privilege is applicable, neither physicians nor third persons, within the ambit of N.J.R.E. 506(a) and N.J.S. 2A: 84A-22.1(d), may disclose confidential communications.

Any confidential statements made to a treating nurse, who was acting either as an agent under a doctor's supervision or in her own professional capacity, should be protected from disclosure under N.J.S. 2A:84A-22.2(c)(ii). See State v. Phillips, 213 N.J. Super. 534, 543, n. 5 (App. Div. 1986).