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2007 SESSION
061190772Be it enacted by the General Assembly of Virginia:
1. That §§ 8.01-399, 8.01-400, and 8.01-400.2 of the Code of Virginia are 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 permitted
to testify in any civil action, respecting any information that he may have
acquired in attending, examining or treating the patient in a professional
capacity.
B. If the physical or mental condition of the patient is at issue in a civil action, the diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of the practitioner, obtained or formulated as contemporaneously documented during the course 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 order shall be entered compelling a party to sign a release for medical records from a health care provider unless the health care provider is not located in the Commonwealth or is a federal facility. If an order is issued pursuant to this section, it shall be restricted to the medical records that relate to the physical or mental conditions at issue in the case. 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; (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 Supreme 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 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 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 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 a 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.
§ 8.01-400. Communications between ministers of religion and persons they counsel or advise.
No Except at the
request or with the consent of the person who sought spiritual counsel or
advice, no regular minister, priest, rabbi, or accredited
practitioner over the age of eighteen years, of any religious organization or
denomination usually referred to as a church, shall be required permitted to give testimony as a witness or to relinquish notes,
records or any written documentation made by such person, or disclose the
contents of any such notes, records or written documentation, in discovery
proceedings in any civil action which would disclose any information
communicated to him in a confidential manner, properly entrusted to him in his
professional capacity and necessary to enable him to discharge the functions of
his office according to the usual course of his practice or discipline, wherein
such person so communicating such information about himself or another is
seeking spiritual counsel and advice relative to and growing out of the
information so imparted.
§ 8.01-400.2. Communications between certain mental health professionals and clients.
Except at the request of or with the consent of the client, no
licensed professional counselor, as defined in § 54.1-3500; licensed clinical
social worker, as defined in § 54.1-3700; licensed psychologist, as defined in
§ 54.1-3600; or licensed marriage and family therapist, as defined in §
54.1-3500, shall be required permitted
in giving testimony as a witness in any civil action to disclose any
information communicated to him in a confidential manner, properly entrusted to
him in his professional capacity and necessary to enable him to discharge his
professional or occupational services according to the usual course of his
practice or discipline, wherein such person so communicating such information
about himself or another is seeking professional counseling or treatment and
advice relative to and growing out of the information so imparted; provided,
however, that when the physical or mental condition of the client is at issue
in such action, or when a court, in the exercise of sound discretion, deems
such disclosure necessary to the proper administration of justice, no fact
communicated to, or otherwise learned by, such practitioner in connection with
such counseling, treatment or advice shall be privileged, and disclosure may be
required. The privileges conferred by this section shall not extend to
testimony in matters relating to child abuse and neglect nor serve to relieve
any person from the reporting requirements set forth in § 63.2-1509.