N.M. R. Evid. 11-504
N.M. R. Evid. 11-504
Committee commentary. - Under the previous version of the rule, the privilege applied only to confidential communications with physicians, psychiatrists, and licensed or certified psychologists. The Supreme Court, however, endorsed expanding the scope of the privilege in Albuquerque Rape Crisis Center vs. Blackmer, 2005-NMSC-032, 138 N.M. 398, 120 P.3d 820 (holding that confidential communications with a victim counselor are privileged). Although Blackmer did not address the issue of licensure, expanding the privilege to include communications with a "state or nationally licensed mental-health therapist" is consistent with the broader view of the privilege recognized in that case. See also generally Jaffee v. Redmond, 518 U.S. 1 (1996) (applying the psychotherapist-patient privilege under the Federal Rules of Evidence to communications with a licensed social worker). The remaining amendments to the rule are intended to be stylistic only.
[Adopted by Supreme Court Order No. 13-8300-025, effective for all cases pending or filed on or after December 31, 2013.]
ANNOTATIONS The 1995 amendment, effective January 1, 1995, made gender neutral changes throughout the rule. The 1990 amendment, effective July 1, 1990, inserted "physician or" throughout the rule; in Paragraph A, added Subparagraph (2) and redesignated former Subparagraphs (2) and (3) as Subparagraphs (3) and (4); and, in Paragraph D, inserted "physical" in Subparagraphs (2) and (3) and added Paragraph (4). There is no state physician-patient privilege except as provided in this rule. Sanchez v. Wohl Shoe Co., 1989-NMCA-003, 108 N.M. 276, 771 P.2d 984. The exception to the physician-patient privilege. - The adoption of the privilege exception set forth in Paragraph 4 of Subsection D of this rule ensures that the privilege rule relating to physical and mental health professionals does not prevent mandated in-court disclosure of what otherwise would have been protected communications. State v. Strauch, 2015-NMSC-009, rev'g 2014-NMCA-020. Where social worker was a mandated reporter of child abuse pursuant to Section 32A-4-3 NMSA 1978 of the Abuse and Neglect Act, and because this rule and Rule 11-501 NMRA deny protection from in-court disclosure of matters that are required by law to be reported out of court, the communications between defendant and his social worker therapist are not shielded from compelled disclosure by evidentiary privilege. State v. Strauch, 2015-NMSC-009, rev'g 2014-NMCA-020. The purpose of this rule is to encourage persons who need medical consultation, examination or interview to seek the advice and opinion of a psychotherapist without fear of betrayal. State ex rel. Human Servs. Dep't v. Levario, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Social worker acting as a mental health provider. - Where defendant, who was charged with criminal sexual penetration of a minor, made confidential communications to a licensed social worker during private counseling sessions for the purpose of diagnosis and treatment; and defendant's ex-spouse participated in the counseling sessions, defendant had the privilege pursuant to Rule 11-504 NMRA to refuse to disclose and to prevent the social worker and defendant's ex-spouse from disclosing information defendant communicated during the counseling sessions because the mandatory reporting requirement in Section 32A-4-3(A) NMSA 1978 did not apply to the social worker or to defendant's ex-spouse. State v. Strauch, 2014-NMCA-020, cert. granted, 2014-NMCERT-001. Victim Counselor Confidentiality Act is consistent with the psychotherapist-patient privilege in this rule and it is to be given effect. Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, 138 N.M. 398, 120 P.3d 820. Purpose of psychotherapist-patient privilege is to protect confidential communications made during treatment of a patient's mental or emotional condition from disclosure during court proceedings. Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, 138 N.M. 398, 120 P.3d 820. Confidentiality manifest in consent to treatment or diagnosis. - The defendant's consent to undergo treatment or diagnosis constituted sufficient conduct to manifest an intent of confidentiality. When a patient sees a physician for either or both of those purposes, it should be implicit that the information conveyed in the private consultation and examination is exclusively for the patient's eyes and ears, absent the patient's consent. State v. Roper, 1996-NMCA-073, 122 N.M. 120, 921 P.2d 322. Privilege applies to civil and criminal cases. - This rule does not contain any language limiting its application to civil cases; therefore, the privilege applies to all cases, both civil and criminal. State v. Roper, 1996-NMCA-073, 122 N.M. 120, 921 P.2d 322. Privilege applied in administrative proceeding. - Hearing officer's discovery order requiring a city employee in a grievance proceeding to produce documents that might contain communications with the employee's therapist, made for the purposes of diagnosis or treatment, infringed on material protected by the psychotherapist privilege. Lara v. City of Albuquerque, 1999-NMCA-012, 126 N.M. 455, 971 P.2d 846. A communication includes: (1) verbal communication of a patient to the psychotherapist; (2) information or knowledge gained by observation and personal examination of the patent; (3) inferences and conclusions drawn therefrom; and (4) exhibiting the body or any part thereof to the psychotherapist for an opinion, examination or diagnosis. State ex rel. Human Servs. Dep't v. Levario, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Prerequisites to status as "confidential" communication. - Communications between psychotherapists and patients are not ipso facto confidential. To be confidential, two conditions must be present: (1) the patient intends the communications to be undisclosed; and (2) nondisclosure would further the interest of the patient. State ex rel. Human Servs. Dep't v. Levario, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Confidential nature of communication must be conveyed by patient to psychotherapist. - It is not sufficient for a patient to say that in the patient's mind the communications were confidential and furthered her own interest. It must be manifested in some fashion with words or words and conduct which lead a psychotherapist to understand or believe that the information obtained is intended to be confidential. State ex rel. Human Servs. Dep't v. Levario, 98 N.M. 442, 649 P.2d 510. Blood tests are communications. - A blood test taken in a personal examination for diagnosis and treatment can reveal a tremendous amount of information about a patient, including the existence of disease, illness, or drug addiction; therefore, the blood test is a communication and nondisclosure of the results would further his privacy interests. State v. Roper, 1996-NMCA-073, 122 N.M. 120, 921 P.2d 322. Section 61-6-14B(5) NMSA 1978 does not create a privilege. - Section 61-6-14B(5) NMSA 1978, precluding physician from "willfully or negligently divulging a professional secret," does not create a privilege; it only describes ethical constraints placed upon a physician, and because there is no physician-patient privilege in New Mexico, except as provided in this rule, statements by a treating physician concerning his patient do not involve ethical issues unless they relate to matters revealed to a physician by his patient in confidence. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963(decided under prior law). Applicability of privilege in a child abuse and neglect case was not required to be addressed because the clear language of this rule and Sections 61-9A-27 and 61-31-24 NMSA 1978 permits disclosure. In re Candice Y., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045. Privilege arises where department of human services induces individual to obtain counseling. - If the department of human services induces a person to be examined and counseled by psychologists, something she would not do but for such inducement, the department is estopped by such conduct to use the psychologists' testimony. State ex rel. Human Servs. Dep't v. Levario, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Defendant's letter constituted communication in course of court-ordered examination. - Letter written by defendant while in jail and addressed to a doctor who had participated in a court-ordered psychiatric examination was a communication made in the course of a court-ordered examination; it was not privileged under this rule because the trial court had not ordered otherwise. State v. Milton, 1974-NMCA-094, 86 N.M. 639, 526 P.2d 436. Privilege inapplicable to court-ordered examinations. - To the extent that a psychologist's testimony regarding a mother's mental condition is based on court-ordered examinations, the psychotherapist-patient privilege is inapplicable. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, cert. denied, 92 N.M. 532, 591 P.2d 286. Reliance on mental condition as defense precludes exercise of privilege. - Where communications to psychologists are relevant to a person's mental condition, but, in a later proceeding, that person relies on her mental condition in opposing the termination of her parental rights, there is no privilege as to those communications under Paragraph D(3). State ex rel. Human Servs. Dep't v. Levario, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Paragraph D(3) exception did not apply to blood test. - A blood test was not a communication relevant to an element of the patient's claim or defense such that it would fall under the exception in Paragraph D(3), since the defendant did not put his physical condition in issue by merely pleading not guilty to a DUI charge. State v. Roper, 1996-NMCA-073, 122 N.M. 120, 921 P.2d 322. Objection limited to privileged testimony. - In a parental termination hearing, where the mother does not attempt to distinguish between nonprivileged testimony and testimony allegedly subject to the privilege, but objects to the entire testimony, the objection is properly overruled. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, cert. denied, 92 N.M. 532, 591 P.2d 286. In a medical malpractice action, the psychotherapist-patient privilege applied to bar plaintiff's discovery regarding the defendant's communication with his psychotherapist. Reaves v. Bergsrud, 1999-NMCA-075, 127 N.M. 446, 982 P.2d 497. In proceeding to terminate a mother's parental rights, where the record was insufficient to determine whether the mother, who was mentally impaired, had waived any privilege she may have had with regard to communications made to her psychologist, and since the waiver issue was not raised at the trial level, under the plain error rule the court's order terminating parental rights was upheld on the grounds that there was clear and convincing evidence other than the allegedly confidential testimony supporting the determination that the mother was an unfit parent. In re Sherry C., 1991-NMCA-137, 113 N.M. 201, 824 P.2d 341. In camera review by court proper. - Trial court was in the best position to assess the probative value of the evidence as it relates to the particular case before it and to weigh that value against the interest in confidentiality of the records. The in camera review by the trial court was proper in this case. State v. Ramos, 1993-NMCA-072, 115 N.M. 718, 858 P.2d 94. Privilege log. - A party claiming a physician-patient privilege must provide a privilege log that identifies each withheld communication, must include any supplemental affidavit that demonstrate reasonable bases for the assertions of privilege, and must have the log signed, as required by Rule 1-011 NMRA. Pina v. Espinoza, 2001-NMCA-055, 130 N.M. 661, 29 P.3d 1062, cert. denied, 130 N.M. 558, 28 P.3d 1099. Waiver of privilege. - In a prosecution for criminal sexual penetration, the victim's release of her medical and psychotherapy to the police and state's attorneys constituted a waiver of her right to rely on the privilege of this rule and the trial court did not abuse its discretion in ordering the records produced for in camera review and in dismissing the case for her failure to do so. State v. Gonzales, 1996-NMCA-026, 121 N.M. 421, 912 P.2d 297. Because the victim did not object to the release of the psychotherapeutic records at the time the court ordered an in camera review, the court appropriately prevented the victim from testifying after the victim asserted the privilege under this rule to prevent the release of those records. The court and the defendant were entitled to rely upon the victim and state's failure to oppose disclosure as indicating that they were not opposed to disclosure. State v. Luna, 1996-NMCA-071, 122 N.M. 143, 921 P.2d 950. Defendant waived his privilege against the disclosure of blood alcohol test results by raising the affirmative defense that the cause of the accident was a migraine headache, not his intoxication. State v. House, 1998-NMCA-018, 124 N.M. 564, 953 P.2d 737, rev'd on other grounds, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967. Statements made for the purpose of diagnosing or treating another person and not for the purpose of diagnosing or treating defendant are outside the scope of the physician-patient privilege. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, cert. denied, 2006-NMCERT-004. Law reviews. - For comment, "Mental Health Law - Temporary Detention of 'Voluntary' Patients by Hospital Authorities: Due Process Issues," see 12 N.M.L. Rev. 791 (1982). For article, "Survey of New Mexico Law, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984). For note, "Evidence: Protecting Privileged Information - A New Procedure for Resolving Claims of the Physician-Patient Privilege in New Mexico - Pina v. Espinoza," see 32 N.M.L. Rev. 453 (2002). For article, "Contours and Chaos: A Proposal for Courts to Apply the 'Dangerous Patient' Exception to the Psychotherapist-Patient Privilege", see 34 N.M.L. Rev. 109 (2004). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses § 236 et seq. Right of defendant in criminal case to claim privilege as to communication between physician and alleged victim, 2 A.L.R.2d 645. Waiver under statutory provision relaxing, in event of action for personal injuries, rule in respect of communications between physician and patient, 25 A.L.R.2d 1429. Privilege of communications by or to nurse or attendant, 47 A.L.R.2d 742. Hypothetical question, right of physician, notwithstanding physician-patient privilege, to give expert testimony based on, 64 A.L.R.2d 1056. Death, who may waive privilege of confidential communication to physician by person since deceased, 97 A.L.R.2d 393. Testimony as to communications or observations as to mental condition of patient treated for other condition, 100 A.L.R.2d 648. Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244. Applicability in criminal proceedings of privilege as to communications between physician and patient, 7 A.L.R.3d 1458. Admissibility of physician's testimony as to patient's statements or declarations, other than res gestae, during medical examinations, 37 A.L.R.3d 778. Privilege, in judicial or quasi-judicial proceedings, arising from relationship between psychiatrist or psychologist and patient, 44 A.L.R.3d 24. Discovery, in medical malpractice action, of names of other patients to whom defendant has given treatment similar to that allegedly injuring plaintiff, 74 A.L.R.3d 1055. Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456. Discovery: physician-patient privilege as applied to physician's testimony concerning wound required to be reported to public authority, 85 A.L.R.3d 1196. Applicability of attorney-client privilege to evidence or testimony in subsequent action between parties originally represented contemporaneously by same attorney, with reference to communication to or from one party, 4 A.L.R.4th 765. Liability of doctor, psychiatrist, or psychologist for failure to take steps to prevent patient's suicide, 17 A.L.R.4th 1128. Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395. Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect, 44 A.L.R.4th 649. Physician's tort liability for unauthorized disclosure confidential information about patient, 48 A.L.R.4th 668. Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213. Attorney's work product privilege, under Rule 26(b)(3) of the Federal Rules of Civil Procedure, as applicable to documents prepared in anticipation of terminated litigation, 41 A.L.R. Fed. 123. 97 C.J.S. Witnesses §§ 283 to 289, 293 to 301.