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How far does physician-patient privilege extend in custody and spousal support cases?

Generally, physician-patient privilege refers to rules that prevent doctors from testifying about communications with patients that occur during treatment. The protections offered by this privilege vary from state to state and jurisdiction to jurisdiction. In Ohio, physician-patient privilege is codified by R.C. 2317(B) and the same privilege is extended to psychologists by R.C. 4732.19. A recent opinion by The Ohio Supreme Court, Torres Friedenberg v. Friedenberg, Slip Opinion No. 2020-Ohio-3345, clarifies how this privilege applies in child custody and spousal support cases.

One of the notable exceptions to this privilege under Ohio law can occur when a patient files a civil action, including a divorce or custody action, but simply triggering the exception is not enough to implicitly waive all physician-patient privilege. Even where the exception applies, testimony is limited to communications that are relevant to the issues before the court. However, in child custody and spousal support cases, the mental and physical status of the parties are always relevant issues that the court is required to consider when making its determination because these are factors that a court must consider by statute. Friedenberg has made clear that it is not necessary for a party to independently raise specific concerns regarding mental or physical status.

What does this mean? In effect, by seeking child custody or spousal support, a party has waived physician-patient privilege for all records relevant to their mental or physical health. While that might sound ominous, it’s important to remember that “relevance” is still an important touchstone: Friedenberg also makes it clear that disputes regarding relevance should be resolved by an in camera examination of the records in question by the trial court, meaning that the judge should review them before they are released to opposing counsel or used in a proceeding.