H-557                _______________________________________________

                                                    HOUSE BILL NO. 878

                        _______________________________________________

State of Washington                              50th Legislature                              1987 Regular Session

By Representatives Crane, Miller, Armstrong, Heavey, Scott, Appelwick, Wang, Wineberry, P. King and Niemi

Read first time 2/13/87 and referred to Committee on Judiciary.

AN ACT Relating to the physician-patient privilege; 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 101, chapter 305, Laws of 1986 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 physician or surgeon or osteopathic 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, except as follows:

          (a) In any judicial proceedings regarding a child's injury, neglect, or sexual abuse or the cause thereof; and

          (b) ((Within ninety days of filing an action for personal injuries or wrongful death, the claimant shall elect whether or not to waive the physician-patient privilege.  If the claimant does not waive the physician-patient privilege, the claimant may not put his or her mental or physical condition or that of his or her decedent or beneficiaries in issue and may not waive the privilege later in the proceedings.  Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules)) After filing an action for personal injury or wrongful death, and within ninety days after receiving a written request therefor from the defendant or its attorney, the plaintiff shall elect whether or not to waive the statutory physician-patient privilege as to medical treatment received for conditions for which the plaintiff claims damages.  If the plaintiff elects not to waive the privilege as to treatment received for such conditions, the plaintiff may not later claim damages for those conditions except on a showing of good cause.  The waiver authorizes obtaining such privileged information only through discovery under the civil rules for superior court, subject to such protective orders as the court may enter, or upon agreement of counsel, by any other means that provides for the patient's right to representation when such information is obtained.  There shall be no ex parte contact with a physician or surgeon without 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.