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State v. Wilson5/31/2001
s outweighs the privacy interest protected by the privilege. " Although we do not necessarily disagree with that general proposition or its application in Benton, it does not justify elimination of Wilson's privilege here. In Benton, an uncooperative victim/witness of a domestic violence incident attempted to preclude the state from obtaining her medical records in its case against the defendant/abuser, who was charged with aggravated assault and burglary. Division One of this court held that "the State may, without the permission of a victim, obtain the victim's medical records when such records are needed for the prosecution of a criminal case." Id. at 467, 897 P. 2d at 1353. Unlike this case, Benton involved unique concerns peculiar to domestic violence cases, in which "it is not unusual that a victim does not wish to cooperate with the prosecution. " Id. at 469, 897 P.2d at 1355. More importantly, Benton addressed the victim's privilege, not the defendant's. See State v. Antill, 197 N.E.2d 548, 551-52 (Ohio 1964) (physician's testimony as to shooting victim's condition not barred by privilege in criminal tr ial).
As the court in Benton noted, " the physician-patient privilege has never been absolute." 182 Ariz. at 469, 897 P.2d at 1355. In addition to the legislature's creation of various statutory exceptions, " he judiciar y has also imposed some limitations" on that privilege, id.; and Arizona courts have recognized a "crime-fraud exception to the attorney-client privilege. " Id. at 470, 897 P.2d at 1356. See also Pearce v. Stone, 149 Ariz. 567, 572, 720 P.2d 542, 547 (App. 1986) (" he attorney-client privilege is defeated by a showing of prima facie fraud on the part of the client. "); Buell v. Superior Court, 96 Ar iz. 62, 68, 391 P. 2d 919, 924 (1964); State v. Fodor, 179 Ariz. 442, 450, 880 P. 2d 662, 670 (App. 1994). But, neither our legislatur e nor supreme court has created or recognized any "crime-fraud exception" to the physician-patient privilege, particularly when a criminal defendant is asserting the privilege. The state's mere charge of fraud against Wilson and its alleged need for the otherwise privileged evidence at issue, in our view, do not justify abrogating the privilege or broadly engrafting a common law " crime- fraud exception" to the privilege in this particular context. See Mutual of Omaha; Sinski; People v. Childs, 622 N.W. 2d 90, 95 (Mich. Ct. App. 2000) (rejecting state's argument that privilege must be abrogated "in all cases where a prosecutor advances a claim of need for a specific piece of evidence in order to pur sue a criminal prosecution" ); cf. Fodor, 179 Ar iz. at 449-50, 880 P. 2d at 669-70 (rejecting "the state's argument that a conversation protected by the attorney-client privilege may nevertheless be used to convict a criminal defendant of perjur y").
The state's public policy argument, though somewhat appealing, could be made in many criminal actions in which proof of a defendant's medical condition allegedly is critical to the state's case. F or example, one could argue that the public's interest in keeping drunk drivers off the roadways should outweigh a defendant's ability to protect from disclosur e medical records that document the defendant had been impaired while driving. Because our supreme court implicitly has rejected that proposition, and because our legislature has not abrogated the privilege in such a sweeping manner, we are not inclined to do so. See Santeyan, 136 Ar iz. at 110, 664 P. 2d at 654 (privilege extended to defendant charged with negligent homicide for having driven under the influence of narcotic drug and required exclusion of results of two urinalysis drug tests performed during treatment of defendant). See also Elwell, 56
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