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60-427. Physician-patient privilege. (a) As used in this section:

(1) "Patient" means a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of such person's physical or mental condition, consults a physician, or submits to an examination by a physician.

(2) "Physician" means a person licensed or reasonably believed by the patient to be licensed to practice medicine or one of the healing arts as defined in K.S.A. 65-2802, and amendments thereto, in the state or jurisdiction in which the consultation or examination takes place.

(3) "Holder of the privilege" means the patient while alive and not under guardianship or conservatorship or the guardian or conservator of the patient, or the personal representative of a deceased patient.

(4) "Confidential communication between physician and patient" means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.

(b) Except as provided by subsections (c), (d), (e) and (f), a person, whether or not a party, has a privilege in a civil action or in a prosecution for a misdemeanor, other than a prosecution for a violation of K.S.A. 8-2,144 or 8-1567, and amendments thereto, or a city ordinance or county resolution which prohibits the acts prohibited by those statutes, to refuse to disclose, and to prevent a witness from disclosing, a communication, if the person claims the privilege and the judge finds that: (1) The communication was a confidential communication between patient and physician; (2) the patient or the physician reasonably believed the communication necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor; (3) the witness (i) is the holder of the privilege, (ii) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted or (iii) is any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician's duty of nondisclosure by the physician or the physician's agent or servant; and (4) the claimant is the holder of the privilege or a person authorized to claim the privilege for the holder of the privilege.

(c) There is no privilege under this section as to any relevant communication between the patient and the patient's physician: (1) Upon an issue of the patient's condition in an action to commit the patient or otherwise place the patient under the control of another or others because of alleged incapacity or mental illness, in an action in which the patient seeks to establish the patient's competence or in an action to recover damages on account of conduct of the patient which constitutes a criminal offense other than a misdemeanor; (2) upon an issue as to the validity of a document as a will of the patient; or (3) upon an issue between parties claiming by testate or intestate succession from a deceased patient.

(d) There is no privilege under this section in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party.

(e) There is no privilege under this section: (1) As to blood drawn at the request of a law enforcement officer pursuant to K.S.A. 8-1001, and amendments thereto, or K.S.A. 3-1007, and amendments thereto; and (2) as to information which the physician or the patient is required to report to a public official or as to information required to be recorded in a public office, unless the statute requiring the report or record specifically provides that the information shall not be disclosed.

(f) No person has a privilege under this section if the judge finds that sufficient evidence, aside from the communication has been introduced to warrant a finding that the services of the physician were sought or obtained to enable or aid anyone to commit or to plan to commit a crime or a tort, or to escape detection or apprehension after the commission of a crime or a tort.

(g) A privilege under this section as to a communication is terminated if the judge finds that any person while a holder of the privilege has caused the physician or any agent or servant of the physician to testify in any action to any matter of which the physician or the physician's agent or servant gained knowledge through the communication.

(h) Providing false information to a physician for the purpose of obtaining a prescription-only drug shall not be a confidential communication between physician and patient and no person shall have a privilege in any prosecution for unlawfully obtaining or distributing a prescription-only drug under K.S.A. 2022 Supp. 21-5708, and amendments thereto.

History: L. 1963, ch. 303, 60-427; L. 1965, ch. 354, § 8; L. 1988, ch. 210, § 1; L. 1992, ch. 99, § 2; L. 2009, ch. 32, § 52; L. 2011, ch. 105, § 30; L. 2012, ch. 172, § 36; L. 2018, ch. 106, § 33; L. 2022, ch. 80, § 21; July 1.

Source or prior law:

G.S. 1868, ch. 80, § 323; L. 1909, ch. 182, § 321; R.S. 1923, 60-2805 (6 th clause).

Cross References to Related Sections:

Waiver of privileges, see 60-437.

Disclosure wrongfully compelled, admissibility, see 60-438.

Privilege unaffected by use of records at University of Kansas school of medicine and medical center for instructional purposes, see 76-354 et seq.

Privilege of patient of treatment facility to prevent disclosure of treatment and of confidential communications, see 65-5601 et seq.

Law Review and Bar Journal References:

"The Physician-Patient Privilege Under the New Code," Steven P. Flood, 33 J.B.A.K. 100 (1964).

Survey of law of evidence, Spencer A. Gard, 12 K.L.R. 239, 240 (1963).

Application to parent accused of child beating determined, opinion of attorney general, 12 K.L.R. 267 (1964).

"The Physician-Patient Relationship—Establishment and Termination," M. Martin Halley, 69 J.K.M.S. 177, 178, 179 (1968).

"The Physician-Patient Relationship: Rights and Obligations," M. Martin Halley, 69 J.K.M.S. 255, 256, 257 (1968).

"The Psychotherapists' Privilege," Craig Kennedy, 12 W.L.J. 297, 299, 305, 307, 308 (1973).

"Medical Malpractice Litigation: The Discoverability and Use of Hospitals' Quality Assurance," Reid F. Holbrook and Lee J. Dunn, Jr., 16 W.L.J. 54, 63 (1976).

"Rule No. 35—A Methodology For Obtaining Medical Examination of Litigants," Rene Hausheer, 46 J.B.A.K. 17, 20 (1977).

"Evidence: Justification for Extension of the Psychotherapist Privilege," Ronald P. Wood, 17 W.L.J. 672 (1978).

"Survey of Kansas Law: Evidence," Spencer A. Gard, 27 K.L.R. 225, 237 (1979).

"More Problems for Plaintiff's Lawyers (Local Rule 220 of the Eighteenth Judicial District)," Patrick J. Michaud, 4 J.K.T.L.A. No. 1, 18 (1980).

"In the Best Interests of the Divided Family: An Analysis of the 1982 Amendments to the Kansas Divorce Code," Nancy G. Maxwell, 22 W.L.J. 177, 206 (1983).

"Evidence: The Psychotherapist-Patient Privilege Under Federal Rule of Evidence 501," Lauren Messersmith, 23 W.L.J. 706, 707, 708 (1984).

"Survey of Kansas Law: Family Law," Nancy G. Maxwell, 32 K.L.R. 543, 554 (1984).

"Intrusion into the Sanctimonious Physician-Patient Relationship," Mark B. Hutton, Vol. VII, No. 1, J.K.T.L.A. 5 (1983).

"A Fresh Look at an Old Problem," Vol. IX, No. 1, J.K.T.L.A. 23 (1985).

"The Scope of the Physician/Patient Privilege Under K.S.A. 60-427(d): Must a Litigant Sign an Unlimited Medical Authorization," Dan L. Wulz, Vol. X, No. 2, J.K.T.L.A. 27 (1986).

"Tolling the Statute of Limitations in Medical Negligence Cases," Dwight Corrin, 11 J.K.T.L.A. No. 4, 7, 9 (1988).

"Should You Take A Chiropractor To Court?" Steven M. Dickson, J.K.T.L.A., Vol. XIII, No. 3, 19, 20 (1990).

"Third-Party Payers and the Physician's Duty of Confidentiality", Wayne T. Stratton, 92 Kan.Med. No. 4, 92 (1991).

"Prohibiting Ex Parte Contacts with Treating Physicians in Kansas," Patrick R. Nichols, J.K.T.L.A. Vol. XV, No. 3, 11, 12 (1992).

"The Physician-Patient Privilege: May Defense Counsel Conduct Ex parte Interviews with Plaintiff's Treating Physician?" Mary Droll Feighny, 61 J.K.B.A. No. 8, 36 (1992).

"Unlimited Medical Authorizations and Ex Parte Communications With Physicians in Kansas," Gary D. White, Jr, J.K.T.L.A. Vol. XVII, No. 3, 19, 20 (1994).

"Attacking The Peer Review Privilege: Some Ideas," Derek S. Casey, J.K.T.L.A. Vol. XVII, No. 6, 19, 21 (1994).

"The Psychologist-Patient Privilege: Time for a Change in Kansas, or is it all in our Heads?" Boyd Isherwood, 37 W.L.J. 659 (1998).

"How to get what you want and need: Requesting health information in the year 2001 and beyond," Martha Fisher Linenberger, 70 J.K.B.A. No. 6, 52 (2001).

"Invocation of the Fifth Amendment in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse Inferences," Jeff D. Morris, 73 J.K.B.A. No. 3, 14 (2004).

"Ethics in Handling Medical Records Pre-Suit and in Civil Discovery," James R. Howell, 32 J.K.A.J., No. 4, 6 (2009).

"The Time-Tested Use of ex parte Communications: Interviewing a Plaintiff's Health Care Providers as a Vital Means of Discovery," Kyle J. Steadman, K.D.J. Winter (2009).

"Ex Parte Contacts with Treating Physicians: A Look at the Law and Current Practice," John W. Johnson, 33 J.K.A.J., No. 5, 11 (2010).

"Establishing the Confidentiality of Healthcare Information to Chip Away at Ex Parte Communications," Derek S. Casey, 35 J.K.A.J. No. 6, 21 (2012).

"Point – Counterpoint: Debating the Ex Parte Interview with the KADC," Derek S. Casey, 36 J.K.A.J. No. 3, 9 (2013).

Attorney General's Opinions:

Doctors of chiropractic cannot use the term "chiropractic physician." 87-42.

Physician-patient privileged communication; inmates; physician justified in notifying officials when necessary to protect health of other inmates. 87-139.

Open records act; certain laboratory records not required to be open. 88-88.

Open records act; identity of persons transported by emergency medical vehicles; physician-patient privilege. 88-101.

Reporting to local health authority as to infectious or contagious disease; physician-patient privilege; confidentiality; disclosure. 92-57.

Confidentiality of identity of community mental health center governing board members. 94-38.

Application of HIPAA to testimony given at care and treatment proceedings. 2004-21.

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-2805 (6 th clause) and the 1961 Supp. thereto.

1. Testimony erroneously admitted only technical error. Craig v. Craig, 197 K. 345, 349, 416 P.2d 297.

2. Appellant examined by court-appointed psychiatrist is not a "patient"; privilege nonexistent in felony cases; patient's condition element of defense. State v. Campbell, 210 K. 265, 266, 281, 500 P.2d 21.

3. Referred to in determining subpoena issued under 44-1004 for employee's arrest and conviction records not violative of constitutional right of privacy. Atchison, T.&S.F. Rly. Co. v. Lopez, 216 K. 108, 125, 531 P.2d 455.

4. Privilege may be claimed only by patient; inapplicable in felony cases; right to examination of medical records. State v. Humphrey, 217 K. 352, 363, 537 P.2d 155.

5. Admission of physician's evidence violated physician-patient privilege; conviction under 8-1567 reversed. State v. George, 223 K. 507, 508, 513, 575 P.2d 511.

6. Physician-patient privilege not applicable to felony cases; conviction affirmed. State v. Parson, 226 K. 491, 492, 601 P.2d 680.

7. In deprived child-parental severance proceeding, since mental and physical condition of parent and child are in issue, physician-patient, psychologist-client privilege waived. In re Zappa, 6 K.A.2d 633, 638, 631 P.2d 1245 (1981).

8. Hospital records subject to physician-patient privilege ordinarily not discoverable without notice and consent of holder of privilege. Wesley Medical Center v. Clark, 234 K. 13, 19, 20, 669 P.2d 209 (1983).

9. Where defendant testified at own trial, court erred in prohibiting cross-examination regarding refusal to testify at earlier trial of fellow defendant. State v. Nott, 234 K. 34, 40, 669 P.2d 660 (1983).

10. Cited in holding objection to admissibility of statements by defendant or counsel at diversion conference not available to codefendant. State v. Wilkins, 9 K.A.2d 331, 333, 676 P.2d 159 (1984).

11. Cited in holding communications between spouses in presence of or overheard by others not privileged; privilege limited to communications seeking to transmit information. State v. Newman, 235 K. 29, 40, 680 P.2d 257 (1984).

12. Court's reliance on privilege in excluding testimony misplaced where patient's condition was element of claim under (d); testimony was cumulative. Walters v. Hitchcock, 237 K. 31, 34, 697 P.2d 847 (1985).

13. To extent otherwise privileged information relevant to issue of child custody, one is deemed to waive statutory privilege. Werner v. Kliewer, 238 K. 289, 293, 710 P.2d 1250 (1985).

14. Physician-patient privilege may apply even though person attended is unconscious, unaware of doctor's presence, does not consent or object. State v. Pitchford, 10 K.A.2d 293, 298, 697 P.2d 896 (1985).

15. Confidential communications outweighed by childrens' best interests in visitation proceeding (60-1616(C)). In re Marriage of Kiister, 245 K. 199, 203, 777 P.2d 272 (1989).

16. Privilege contained herein compared with peer review privilege contained in 65-4915(b) in medical malpractice case. Herbstreith v. de Bakker, 249 K. 67, 80, 815 P.2d 102 (1991).

17. Whether blood test results requested by defendant's physician in vehicular homicide case are subject to physician-patient privilege examined. State v. Mendoza, 20 K.A.2d 541, 543, 889 P.2d 1147 (1995).

18. Error to hold all coroner's physician-patient communications subject to public disclosure; disclosure to surviving spouse proper. Burroughs v. Thomas, 23 K.A.2d 769, 773, 937 P.2d 12 (1997).

19. Trial court did not err in allowing doctor's testimony beyond care and treatment. Foster v. Klaumann, 42 K.A.2d 634, 216 P.3d 671 (2009).

20. Limitation of the physician-patient privilege constitutional. State v. Weilert, 43 K.A.2d 403, 225 P.3d 767 (2010).


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