H-4536              _______________________________________________

                                          SUBSTITUTE HOUSE BILL NO. 1856

                        _______________________________________________

State of Washington                              49th Legislature                              1986 Regular Session

By House Committee on Judiciary (originally sponsored by Representatives Armstrong and Appelwick)

Read first time 2/7/86 and passed to Committee to Rules.

AN ACT Relating to waiver of the physician-patient privilege against examination in personal injury or wrongful death actions; and amending RCW 5.60.060.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

        Sec. 1.  Section 294, page 187, Laws of 1854 as last amended by section 1, chapter 56, Laws of 1982 and RCW 5.60.060 are each amended to read as follows:

          (1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage.  But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to a criminal action or proceeding against a spouse if the marriage occurred subsequent to the filing of formal charges against the defendant, nor to a criminal action or proceeding for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian, nor to a proceeding under chapter 71.05 RCW:  PROVIDED, That the spouse of a person sought to be detained under chapter 71.05 RCW may not be compelled to testify and shall be so informed by the court prior to being called as a witness.

          (2) An attorney or counselor shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.

          (3) A clergyman or priest shall not, without the consent of a person making the confession, be examined as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs.

          (4) ((A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient, but this exception shall not apply in any judicial proceeding regarding a child's injuries, neglect or sexual abuse, or the cause thereof.)) A physician or surgeon licensed under chapter 18.57 RCW or equivalent laws of another state shall not, without the express written consent of the patient, be examined or contacted in a civil or criminal action as to any reports, written records, opinions formed, observations made, or information or materials acquired with respect to the patient.  The information is not subject to disclosure, subpoena, or discovery proceedings, except:

(a) This privilege does not apply in any judicial proceeding regarding a child's injuries, neglect or sexual abuse, or the cause thereof; and

(b) Bringing an action for personal injuries or wrongful death constitutes a waiver of the privilege with respect to the same or similar condition at issue in the action.  The waiver authorizes obtaining such otherwise privileged information only through the discovery procedures of the civil rules of the superior court, or upon agreement of all counsel, by any other means which provides for the patient's right to representation when such information is obtained.  There shall be no ex parte contact with such health care providers without the express written consent of the patient.

          (5) A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure.