Note:

Changes in the laws, rules and regulations since the 2001 edition of the LSBEP Directory and Statutory Reference book appear in boldface type in this 2002 edition.

Testimonial Privileges, Louisiana Code of Evidence Arts. 501-503, 510, 1101

Art. 501. Scope of privileges

         Privileges as recognized in this Chapter are evidentiary in nature, do not of themselves create causes of action or other substantive rights, and are applicable to proceedings enumerated in Article 1101. Nothing in this Chapter is intended to regulate the content or waiver of constitutional rights, nor inferences to be drawn from their invocation.

Art. 502. Waiver of privilege

         A. Waiver. A person upon whom the law confers a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

         B. Disclosure under compulsion or without opportunity to claim. A claim of privilege is not defeated by a disclosure which was

                (1) compelled or

                (2) made without opportunity to claim the privilege.

         C. Joint holders. Where two or more persons are joint holders of a privilege, a wavier of the right of one joint holder to claim the privilege does not affect the right of another joint holder to claim the privilege.

Art. 503. Comment on or inference from claim of privilege; instructions; exception

         A. Comment, inference, and instructions.

                (1) The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inferences may be drawn therefrom.

                (2) In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

                (3) Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

         B. Exception in non-criminal proceedings. In non-criminal proceedings, under exceptional circumstances in the interest of justice, if a claim of privilege is sustained counsel may comment thereon, and upon request, the court shall instruct the trier of fact that it may draw all reasonable inferences therefrom.

Art  510. Health Care Provider-Patient Privilege

         A. Definitions. As used in this Article:

                (1) “Patient” is a person who consults or is examined or interviewed by another for the purpose of receiving advice, diagnosis, or treatment in regard to that person’s health.

                (2) “Health care provider” is a person or entity defined as such in R.S.

13:3734(A)(1), and includes a physician and psychotherapist as defined below.

                (3) “Physician” is a person licensed to practice medicine in any state or nation.

                (4) “Psychotherapist” is:

                        (a) A physician engaged in the diagnosis or treatment of a mental or emotional condition, including a condition induced by alcohol, drugs, or other substance.

                        (b) A person licensed or certified as a psychologist under the laws of any

state or nation.       

                        (c) A person licensed as a professional mental health counselor or board certified social worker under the laws of any state or nation.

                (5) “Representative of a patient” is any person who makes or receives a confidential communication for the purpose of effectuating diagnosis or treatment of a patient.

                (6) “Representative” of a physician, psychotherapist, or other health care provider is:             

                        (a) A person acting under the supervision, direction, control, or request of a physician, psychotherapist, or health care provider engaged in the diagnosis or treatment of the patient.

                        (b) Personnel of a “hospital, “as defined in R.S. 13:3734(A)(3), whose duties relate to the health care of patients or to maintenance of patient records.

                (7) The definitions of health care provider, physician, psychotherapist, and their representatives include persons reasonably believed to be such by the patient or his representative.

                (8)   (a) “Confidential communication” is the transmittal or acquisition of information not intended to be disclosed to persons other than:

                                 (i) A health care provider and a representative of a health care provider.          

                                 (ii) Those reasonably necessary for the transmission of the communication.

                                 (iii) Persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist.

                                 (iv) A patient’s health care insurer, including any entity that provides indemnification to a patient.

                                 (v) When special circumstances warrant, those who are present at the behest of the patient, physician, or psychotherapist and are reasonably necessary to facilitate the communication.

                        (b) “Confidential communication” includes any information, substance, or tangible object, obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by health care providers and their representatives.

                (9) “Health condition” is a physical, mental, or emotional condition, including a condition induced by alcohol, drugs, or other substance.

         B.    (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.

                (2) Exceptions. There is no privilege under this article in a non-criminal proceeding as to a communication:

                        (a) When the communication relates to the health condition of a patient who brings or asserts a personal injury claim in a judicial or worker’s compensation proceeding.

                        (b) When the communication relates to the health condition of a deceased patient in a wrongful death, survivorship, or worker’s compensation proceeding brought or asserted as a consequence of the death or injury of the deceased patient.

                        (c) When the communication is relevant to an issue of the health condition of the patient in any proceeding in which the patient is a party and relies upon the condition as an element of his claim or defense or, after the patient’s death, in any proceeding in which a party deriving his right from the patient relies on the patient’s health condition as an element of his claim or defense.

                        (d) When the communication relates to the health condition of a patient when the patient is a party to a proceeding for custody or visitation of a child and the condition has a substantial bearing on the fitness of the person claiming custody or visitation, or when the patient is a child who is the subject of a custody or visitation proceeding.

                        (e) When the communication made to the health care provider was intended to assist the patient or another person to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud.

                        (f) When the communication is made in the course of an examination ordered by the court with respect to the health condition of a patient, the fact that the examination was so ordered was made known to the patient prior to the communication, and the communication concerns the particular purpose for which the examination was made, unless the court in its order directing the examination has stated otherwise.

                        (g) When the communication is made by a patient who is the subject of an interdiction or commitment proceeding to his current health care provider when  such patient has failed or refused to submit to an examination by a health care provider appointed by the court regarding issues relating to the interdiction or commitment proceeding, provided that the patient has been advised of such appointment and the consequences of not submitting to the examination.

                        (h) When the communication is relevant in proceedings held by peer review committees and other disciplinary bodies to determine whether a particular health care provider has deviated from applicable professional standards.

                        (i) When the communication is one regarding the blood alcohol level or other test for the presence of drugs of a patient and an action for damages for injury, death, or loss has been brought against the patient.

                        (j) When disclosure of the communication is necessary for the defense of the health care provider in a malpractice action brought by the patient.

                        (k) When the communication is relevant to proceedings concerning issues of child abuse, elder abuse, or the abuse of disabled or incompetent persons.

                        (l) When the communication is relevant after the death of a patient, concerning the capacity of the patient to enter into the contract which is the subject matter of the litigation.

                        (m) When the communication is relevant in an action contesting any testament executed or claimed to have been executed by the patient now deceased.

         C.    (1) General rule of privilege in criminal proceedings. In a criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself, his representative, and his physician or psychotherapist, and their representatives.

                (2) Exceptions. There is no privilege under this Article in a criminal case as to a communication:

                        (a) When the communication is relevant to an issue of the health condition of the accused in any proceeding in which the accused relies upon the condition as an element of his defense.

                        (b) When the communication was intended to assist the patient or another person to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud.

                        (c)  When the communication was made in the course of an examination ordered by the court in a criminal case to determine the health condition of a patient, provided that a copy of the order was served on the patient prior to the communication.

                        (d) When the communication is a record of the results of a test for blood alcohol level or drugs taken from a patient who is under arrest, or who was subsequently arrested for an offense related to the test.

                        (e) When the communication is in the form of a tangible object, including a bullet, that is removed from the body of a patient and which was in the body as a result of the crime charged.

                        (f) When the communication is relevant to an investigation of or prosecution for child abuse, elder abuse, or the abuse of disabled or incompetent persons.

         D. Who may claim the privilege. In both civil and criminal proceedings, the privilege may be claimed by the patient or by his legal representative. The person who was the physician, psychotherapist, or health care provider or their representatives, at the time of the communication is presumed to have authority to claim the privilege on behalf of the patient or deceased patient.

Art. 1101. Judicial Proceeding for Applicability of Art. 510

         A. Proceedings generally; rule of privilege.

                (1) Except as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of questions of fact in all contradictory judicial proceedings and in proceedings to confirm a default. Juvenile adjudication hearings in non-delinquent proceedings shall be governed by the provisions of this Code applicable to civil cases. Juvenile adjudication hearings in delinquency proceedings shall be governed by the provisions of this Code applicable to criminal cases.