Physician/psychotherapist-patient - Next Generation Bar Exam

1. Under Jaffee v. Redmond, what privilege does federal law recognize?

   A psychotherapist-patient privilege for confidential communications made for diagnosis or treatment. The privilege extends to licensed clinical social workers.

2. An officer who shot a suspect receives counseling from a licensed social worker. In a federal civil rights suit, the estate seeks the notes. What is the result?

   The notes are privileged under Jaffee v. Redmond. The federal privilege covers licensed clinical social workers.

3. Under FRE 501, what law governs privileges in federal question cases?

   Federal common law, as interpreted in light of reason and experience. In civil cases where state law supplies the rule of decision, state privilege law applies.

4. In a federal diversity case for medical malpractice, the plaintiff's own treating physician is asked about treatment unrelated to the claim. Which privilege law governs?

   State privilege law, under FRE 501. State law supplies the rule of decision in a diversity malpractice claim.

5. What is the patient-litigant exception to the psychotherapist and physician privileges?

   The privilege is waived when the patient puts the patient's own mental or physical condition at issue. For example, claiming emotional distress damages may waive the privilege.

6. Under Jaffee v. Redmond, what is the status of balancing the patient's privacy against the need for evidence?

   It is rejected; the federal psychotherapist privilege is not subject to case-by-case balancing. The Court reasoned that an uncertain privilege is little better than none.

7. Who holds the psychotherapist-patient privilege?

   The patient. The therapist may assert the privilege on the patient's behalf.

8. Under state physician-patient privileges, what communications are typically protected?

   Confidential communications made to obtain diagnosis or treatment. Facts that the patient sought treatment are often not protected.

9. What is the status of the physician-patient privilege under federal common law?

   Federal common law does not recognize a general physician-patient privilege. State law may supply the privilege in diversity cases.

10. What is the effect of the presence of a necessary third party, such as a nurse, on the psychotherapist privilege?

    It does not destroy confidentiality. Confidentiality extends to persons participating in diagnosis or treatment.

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