Legally Privileged Communication

Privileged Communication

• “Privileged communication” refers to information shared confidentially within a legally protected relationship.¹ There are a variety of protected relationships that are commonly recognized by the court. Doctor-patient relationships are a type of legally protected relationship, as are attorney-client, priest-penitent, and spousal relationships. Hospital records or incident reports may be considered privileged communication under certain circumstances. Information contained in these exchanges cannot be shared with a court without the consent of the communicator.²
• There are a few important caveats to these protections. In professional-client relationships, the privilege of confidentiality covers the client, not the professional. The privilege of confidentiality can be waived, either intentionally or unintentionally. For example, if a third party is included in the conversation within a legally protected relationship, the information is no longer considered privileged.
• In a 2011 paper addressing attorney-client privilege within the healthcare setting, Atwood stated that if hospital records or incident reports are to be considered confidential, they must:
  • appear to be confidential communications between the client (hospital or medical professional) and hospital counsel;
  • be limited in distribution, which supports the assertion that they are confidential and avoids the appearance of waiving privilege; and
  • appear legal in nature when seen by an independent reviewer (like the court).³

PSQIA

• Confidentiality is of particular concern to physicians when reviewing and discussing patient safety and quality of care. In 2005, the PSQIA was passed, which ensures the confidentiality of these communications, collectively known as the patient safety work product (PSWP). This act amended a portion of an earlier law, known as the Public Health Service Act. The protections provided by the PSQIA assume that ensuring legal confidentiality of patient safety reports will encourage more open and honest discussion of these concerns, eventually contributing to improved quality of care for all patients.⁴
• The PSWP includes both written and oral communications collated by providers to report to a patient safety organization. It can also include information from safety organizations themselves that is gathered to further patient safety, quality of care, or outcomes.⁵

Exceptions to Privilege

• Even within legally protected relationships, there are circumstances in which the privilege of confidentiality does not apply. For example, when communications include information on the furtherance or planning of future crimes or threats to public safety, confidentiality is not guaranteed by the court.
• Privilege can be waived if confidential information is disclosed to a third party, regardless of whether this disclosure is intentional or accidental. Spousal privilege does not apply when spouses are suing each other, such as in divorce proceedings. It also does not apply when the crime is committed by one spouse against the other or their children, such as in the case of abuse.⁶