Jim Porter: Physician-patient privilege and restraining orders
March 23, 2012
TAHOE/TRUCKEE andamp;#8212; If you tell your doctor something very confidential, something you donandamp;#8217;t want anyone else to know, must your doctor keep that confidential? What if you tell your doctor you want to kill someone, or more to the point, you tell a nurse you want to kill your neighbor and her family, then kill yourself?As long as we are asking questions, if you were the threatened neighbor, what would it take to get a temporary restraining order?San Francisco NeighborsJill Duronslet and Joyce Kamps co-owned a two-unit building in San Francisco. Duronslet lived downstairs with her husband and two children. The women did not get along. Duronslet claimed Kamps disconnected her water system and andamp;#8220;gave the family the finger.andamp;#8221; Other threats were alleged.Tarasoff ReportThe situation escalated when Kamps was coincidentally being seen by a nurse. She told the nurse she suffered from depression, adding she wanted to kill her neighbors and commit suicide. Because the threat constituted a andamp;#8220;Tarasoff Report,andamp;#8221; meaning a serious threat against another person made to a mental health practitioner, in California the mental health professional must protect the potential victim, usually done by calling the police. The nurse called the police. When the police informed Duronslet of the threat, she went to court seeking a temporary restraining order.Harassment Protective OrderCode of Civil Procedure section 527.6 enables andamp;#8220;a person who has suffered harassment andamp;#8212; defined as unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purposeandamp;#8221; andamp;#8212; to seek a temporary restraining order and an injunction which may be issued with or without notice andamp;#8220;upon proof of harassment of the plaintiff by the defendant, and that great or irreparable harm would result to the plaintiff…andamp;#8221;A andamp;#8220;credible threat of violenceandamp;#8221; is a recent andamp;#8220;knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.andamp;#8221;If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction may be issued, for example, an order to stay away from the plaintiff.That is the basic law for a protective order involving individuals. Your lesson for the day. First of two.Physician-Patient PrivilegeKamps defended against Duronsletandamp;#8217;s request for an injunction, claiming the time-honored physician-patient privilege applied to her conversation with the nurse, and as the patient she has a right to prevent the physician, in this case the nurse, from disclosing her confidential communication without the nurseandamp;#8217;s recital of Kampandamp;#8217;s alleged threat, no restraining order would be issued.The Court of Appeal analyzed whether the physician-patient privilege in California (which has exceptions) applies only to physicians or whether it also applies to nurses.The Court noted that in other states the physician-patient privilege specifically includes nurses and other medical personnel, but not in California andamp;#8212; thus the restraining order and injunction against Kamps was properly issued based upon Kampandamp;#8217;s threats told to the nurse, then told to the police. If you have something to say you donandamp;#8217;t want republished, tell the doctor, not the nurse. Domestic Violence AbuseAs long as we are in a teaching mode, letandamp;#8217;s briefly cover the Domestic Violence Prevention Act.Abuse under the Act is andamp;#8212; intentionally or recklessly causing or attempting to cause bodily injury; sexual assault; placing a person in reasonable apprehension of imminent serious injury; or behavior such as molesting, attacking, striking, threatening, battering, harassing, telephoning, destroying personal property, contacting the other by mail or otherwise, or disturbing the peace of the other party.The act must be recent, within 30 days, and the batterer must be a spouse/ex-spouse, boyfriend/girlfriend, ex-boyfriend/ ex-girlfriend, someone with whom the victim has or has had a relationship with, an immediate family member, or a person with whom a person has a child or children together. A victim of these acts may seek a domestic restraining order. For more on domestic violence protective orders check the Placer or Nevada County Superior Court web pages. Or contact one of our excellent local resources like Tahoe Safe Alliance at Truckee: 530-582-9117 or Kings Beach: 530-547-7804.Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firmandamp;#8217;s-website, http://www.portersimon.com.