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2002 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 8.01-399 of the Code of Virginia is amended and reenacted as follows:
§ 8.01-399. Communications between physicians and patients.
A. Except at the request or with the consent of the patient, or as provided in
this section, no duly licensed practitioner of any branch of the healing arts
shall be required to testify in any civil action, respecting any information
which that he may have acquired in attending, examining or treating the
patient in a professional capacity.
B. Notwithstanding subsection A, when If the physical or mental condition of
the patient is at issue in a civil action, the diagnosis or treatment plan of
the practitioner, as documented in the patient's medical record, during the
time of the practitioner's treatment, together with the facts communicated to,
or otherwise learned by, such practitioner in connection with such attendance,
examination or treatment shall be disclosed but only in discovery pursuant to
the Rules of Court or through testimony at the trial of the action. In
addition, disclosure may be ordered when a court, in the exercise of sound
discretion, deems it necessary to the proper administration of justice.
However, no disclosure of diagnosis or treatment plan facts communicated to, or
otherwise learned by, such practitioner shall occur if the court determines, upon the
request of the patient, that such facts are not relevant to the subject matter involved in
the pending action or do not appear to be reasonably calculated to lead to the
discovery of admissible evidence. Only diagnosis offered to a reasonable
degree of medical probability shall be admissible at trial.
C. This section shall not (i) be construed to repeal or otherwise affect the
provisions of § 65.2-607 relating to privileged communications between
physicians and surgeons and employees under the Workers' Compensation Act or,
(ii) apply to information communicated to any such practitioner in an effort unlawfully to
procure a narcotic drug, or unlawfully to procure the administration of any such
drug, or (iii) prohibit a duly licensed practitioner of the healing arts,
or his agents, from disclosing information as required by state or federal law.
D. Neither a lawyer, nor anyone acting on the lawyer's behalf, shall obtain, in
connection with pending or threatened litigation, information concerning a
patient from a practitioner of any branch of the healing arts without the
consent of the patient, except through discovery pursuant to the Rules of the Court
as herein provided. However, the prohibition of this subsection shall not apply to:
1. Communication between a lawyer retained to represent a practitioner of the healing arts, or that lawyer's agent, and that practitioner's employers, partners, agents, servants, employees, co-employees or others for whom, at law, the practitioner is or may be liable or who, at law, are or may be liable for the practitioner's acts or omissions;
2. Information about a patient provided to a lawyer or his agent by a practitioner of the healing arts employed by that lawyer to examine or evaluate the patient in accordance with Rule 4:10 of the Rules of the Supreme Court; or
3. Contact between a lawyer or his agent and a nonphysician employee or agent
of a practitioner of healing arts for any of the following purposes: (i)
scheduling appearances, (ii) requesting a written recitation by the
practitioner of handwritten records obtained by the lawyer or his agent from
the practitioner, provided the request is made in writing and, if litigation is
pending, a copy of the request and the practitioner's response is provided
simultaneously to the patient or his attorney, (iii) obtaining information
necessary to obtain service upon the practitioner in pending litigation, (iv)
determining when records summoned will be provided by the practitioner or his
agent, (v) determining what patient records the practitioner possesses in order
to summons records in pending litigation, (vi) explaining any summons which
that the lawyer or his agent caused to be issued and served on the
practitioner, (vii) verifying dates the practitioner treated the patient, provided
that if litigation is pending the information obtained by the lawyer or his agent is
promptly given, in writing, to the patient or his attorney, (viii) determining
charges by the practitioner for appearance at a deposition or to testify before
any tribunal or administrative body, or (ix) providing to or obtaining from the
practitioner directions to a place to which he is or will be summoned to give
testimony.
E. A clinical psychologist duly licensed under the provisions of Chapter 36 (§ 54.1-3600 et seq.) of Title 54.1 shall be considered a practitioner of a branch of the healing arts within the meaning of this section.
F. Nothing herein shall prevent a duly licensed practitioner of the healing
arts, or his agents, from disclosing any information which that he may have
acquired in attending, examining or treating a patient in a professional
capacity where such disclosure is necessary in connection with the care of the
patient, the protection or enforcement of the practitioner's legal rights
including such rights with respect to medical malpractice actions, or the
operations of a health care facility or health maintenance organization or in
order to comply with state or federal law.