(a) A patient is a person who consults or is examined or interviewed by a physician for purposes of diagnosis or treatment of his or her physical, mental, or emotional condition;

(b) A physician is (i) a person authorized to practice medicine in any state or nation or who is reasonably believed by the patient so to be or (ii) a person licensed as a psychologist under the laws of any state or nation who devotes all or a part of his or her time to the practice of psychology;

(c) A client is a person who consults or is interviewed by a professional counselor for professional counseling as defined in section 38-2118;

(d) A professional counselor is a person certified as a professional counselor pursuant to section 38-2132; and

(e) A communication is confidential if not intended to be disclosed to third persons other than those present to further the interest of (i) the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family, or (ii) the client participating in professional counseling by a professional counselor.

(2)(a) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of his or her physical, mental, or emotional condition among himself or herself, his or her physician, or persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.

(b) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made during counseling between himself or herself, his or her professional counselor, or persons who are participating in the counseling under the direction of the professional counselor, including members of the client's family.

(3) The privilege may be claimed by the patient or client, by his or her guardian or conservator, or by the personal representative of a deceased patient or client. The person who was the physician or professional counselor may claim the privilege but only on behalf of the patient or client. His or her authority so to do is presumed in the absence of evidence to the contrary.

(4)(a) There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for physical, mental, or emotional illness if the physician, in the course of diagnosis or treatment, has determined that the patient is in need of hospitalization or if a professional counselor deems it necessary to refer a client to determine if there is need for hospitalization.

(b) If the judge orders an examination of the physical, mental, or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(c) There is no privilege under this rule as to communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense.

(d) There is no privilege under this rule in any judicial proceedings under the Nebraska Juvenile Code regarding injuries to children, incompetents, or disabled persons or in any criminal prosecution involving injury to any such person or the willful failure to report any such injuries.

(e) There is no privilege under this rule in any judicial proceeding regarding unlawfully obtaining or attempting to obtain (i) a controlled substance, (ii) a written or oral prescription for a controlled substance, or (iii) the administration of a controlled substance from a practitioner. For purposes of this subdivision, the definitions found in section 28-401 shall apply.

Annotations

Under subsection (4)(c) of this section, when plaintiff files a personal injury claim, he waives the physician-patient privilege as to all the information concerning the health and medical history relevant to the matters which plaintiff has put at issue. Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993).

A party attempting to exclude evidence on the basis of the physician-patient privilege has the burden of proving that the information obtained by the physician falls within the strict ambit of that rule of evidence. To be privileged, information obtained during the existence of a physician-patient relationship must be necessary for the physician to properly discharge his duties. A patient's privilege to prevent any other person from disclosing confidential communications extends only to communications made for the purposes of diagnosis or treatment of his physical, mental, or emotional condition. State v. Irish, 223 Neb. 578, 391 N.W.2d 137 (1986).

When mental condition is in issue, the physician-patient privilege is waived. Clark v. Clark, 220 Neb. 771, 371 N.W.2d 749 (1985).

Under the terms of this provision, when the mental condition of a parent is in issue, evidence from the parent's treating psychiatrist is admissible in a juvenile court proceeding to determine child custody. In re Interest of Spradlin, 210 Neb. 734, 317 N.W.2d 59 (1982).

Results of blood alcohol test conducted on blood sample taken from unconscious driver in hospital were inadmissible, under physician-patient privilege, in wrongful death action against driver. Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307 (1977).

This section provides a privilege for professional counsel-patient communications, but under subsection (4)(d), no privilege exists in criminal prosecutions for injuries to children. State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016).

Section 38-3131 does not nullify the rule set forth in subdivision (2)(a) of this section. In re Interest of Dennis W., 14 Neb. App. 827, 717 N.W.2d 488 (2006).

This section sets forth the physician-patient privilege that applies to individuals such as a licensed psychologist; such privilege is nullified in proceedings to hospitalize the patient for physical, mental, or emotional illness if the physician, in the course of diagnosis or treatment, has determined that the patient is in need of hospitalization. In re Interest of Dennis W., 14 Neb. App. 827, 717 N.W.2d 488 (2006).

The neglect of a child is an injury to the child's welfare and rights, and it constitutes one of the exceptions to the physician-patient privilege recognized in this section. Exception to physician-patient privilege in juvenile proceedings is not restricted to actions which occur inside the walls of the courtroom. In re Interest of J.S., 1 Neb. App. 518, 499 N.W.2d 89 (1993).