Miss. R. Evid. 503

As amended through March 21, 2024

Rule 503 - Privilege between Patient and Physician or Psychotherapist

(a) Definitions. In this rule:

(1) "Patient" means a person who consults, is examined by, or is interviewed by a physician or psychotherapist;

(2) "Physician" means a person who is - or the patient reasonably believes to be - authorized to practice medicine in any state or nation;

(3) "Psychotherapist" means:

(A) a physician, or a person licensed or certified as a psychologist by any state or nation,

(B) while engaged in diagnosing or treating a mental or emotional condition, including alcohol or drug addiction.

(4) A communication is "confidential" if not intended to be disclosed to third persons, other than those:

(A) present to further the patient's interests in the consultation, examination, or interview;

(B) reasonably necessary to transmit the communication; or

(C) participating in the diagnosis or treatment under the physician's or psychotherapist's direction, including members of the patient's family.

(b) General Rule of Privilege. A patient has a privilege to refuse to disclose, and to prevent others from disclosing:

(1) knowledge the physician or psychotherapist derived from the professional relationship with the patient; and

(2) confidential communications:

(A)made for the purpose of diagnosing or treating the patient's physical, mental, or emotional condition, including alcohol or drug addiction, and

(B) between or among the patient, the patient's physician or psychotherapist, and persons - including the patient's family - participating in the diagnosis or treatment under the direction of the physician or psychotherapist.

(c) Who May Claim the Privilege.

(1) The privilege may be claimed by:

(A) the patient;

(B) the patient's guardian or conservator; or

(C) a deceased patient's personal representative.

(2) The physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege, but only on the patient's behalf.

(d) The privilege does not apply:

(1)Hospitalization Proceedings. In proceedings to hospitalize the patient for mental illness, if the physician or psychotherapist has determined in the course of diagnosis or treatment that the patient needs to be hospitalized;

(2)Court-Ordered Examination. To any communication related to the purpose of a court order directing an examination of the physical, mental, or emotional condition of a patient who is a party or witness, unless the order states that the privilege applies;

(3)Breach of Duty. To an issue of breach of duty by the physician or psychotherapist to the patient or by the patient to the physician or psychotherapist; or

(4)Children and Parents; Seal or Release Records. To communications - including records - regarding a party's physical, mental, or emotional health or drug or alcohol condition when relevant to child custody, visitation, adoption, or termination of parental rights.

As to this paragraph (4), the court may order the records sealed or - after a hearing in chambers - order the relevant records released.

(e) Waiver by Filing Case or Delivering Notice. In a case or claim for professional services that were or should have been rendered, filing the case or delivering written notice of the claim waives the privilege.

(f)Waiver by Pleadings; Ex Parte Contact. A party whose pleadings place in issue any aspect of that party's physical, mental, or emotional condition thereby - and to that extent only - waives the privilege.

The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.

Miss. R. Evid. 503

Amended October 13, 1992; amended effective 5/27/2004 to remove the privilege in child custody and like proceedings; restyled effective 7/1/2016.

Advisory Committee Historical Note.

Effective October 13, 1992, Rule 503(f) was amended to state that the rule is inapplicable to contexts other than hearings or discovery proceedings and to delete reference to workers' compensation proceedings. 603-605 So. 2d XXI (West Miss. Cas. 1993).

Advisory Committee Note

The language of Rule 503 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. In Rule 503(a)(4)(C), "diagnosis or treatment" replaces "diagnosis and treatment," to conform to Mississippi law, including the statement of privilege in subdivision (b ). These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Subsection (a) defines the terms "patient," "physician," "psychotherapist," and "confidential communication." Existing Mississippi law is codified at M.C.A. § 13-1-21. The existing statute is broader than Rule 503(a) in that it extends the privilege to physicians, osteopaths, dentists, hospitals, nurses, pharmacists, podiatrists, optometrists, and chiropractors. M.C.A. § 73-31-29 extends the privilege to psychologists. Additionally, under existing Mississippi law no allowance has been made for an erroneous belief that the treating individual was a physician. Rules 503(a)(2) and (3) make such an allowance.

Rule 503(a)(4) is essentially a codification of existing state practice. It is compatible with the definition of "confidential communication" under Rule 502 (the attorney-client privilege.)

Rule 503(b) is a statement of the privilege rule. It, too, is compatible with the statement of the attorney-client privilege in Rule 502. The public policy protecting communications made about alcohol and drug addiction arises out of the current contemporary concern about these problems. By protecting these communications it is hoped that rehabilitation efforts will be encouraged.

Subsection (c) is reflective of M.C.A. 13-1-21. The privilege belongs to the patient, and only the patient can waive it.

Subsection (d) excepts four instances from the privilege. The first exception concerns commitment proceedings. Existing law in Mississippi is structured so that such communications currently are not privileged. See M.C.A. 41-21-67 et seq.

The second exception under subsection (d) pertains to court-ordered physical or mental examinations. The exception is necessary for the effective utilization of this procedure. It is important to note that the exception is effective only with respect to the particular purpose for which the examination is ordered. No statement made by an accused in the course of an examination into competency to stand trial is admissible on the issue of guilt.See also MRCrP 12.4.

Under the third exception there is no privilege when a controversy develops between physician and patient, such as in a dispute over medical fees or medical malpractice.

Under subsection (d)(4), when determining whether records are relevant to a custody, termination, or adoption action, some of the factors courts should consider include whether: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court ordered evaluations are an inadequate substitute; and (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.

Subsection (e) is required by considerations of fairness and policy, and simply provides that the institution of a claim, either by delivery of written notice or by the filing of an action, operates to waive the privilege as to any medical information relevant to the claim.

The primary impact of subsection (f) will be in personal injury actions, although the exception by its terms is not so limited. This subsection, like the remainder of these rules, has no application outside the context of hearing or discovery processes in the Mississippi Rules of Civil Procedure and other rules of court. See Rules 101 and 1101. By virtue of this exception a party who seeks recovery of damages for a physical, mental or emotional injury waives the privilege for purposes of that action only and to the extent that he or she has put his or her physical, mental or emotional condition in issue by his or her pleadings. With respect to any aspect of the party's physical, mental or emotional condition not put in issue by his or her pleadings, the privilege remains in full force and effect. Rules of Evidence by their definition govern the admissibility of evidence at trial. Subsection (f) is not a procedural rule and cannot be used as such.

[Amended effective May 27, 2004; "Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling; further amended effective July 1, 2017.]