 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
State v. Wilson5/31/2001
7 A. 2d at 1006-07 (privilege prevented use of evidence obtained from driver's blood sample in prosecution for negligent homicide). In view of the extensive Arizona statutory scheme relating to the physician-patient privilege and the significant policy considerations that may influence the creation of any exceptions thereto, it is the legislature's prer ogative, not this court's, to establish any appropriate "cr ime-fraud exception" to the privilege.
Finally, because our legislature has established a physician-patient privilege, we find unpersuasive the state's contention that " our conditions must be met before a privilege can be legally recognized. " See Ulibarri v. Superior Court, 184 Ar iz. 382, 389, 909 P.2d 449, 456 (App. 1995) (upholding marital privilege despite fact that one of the four conditions, that injury from disclosure outweigh benefit gained by disposal of litigation, was "most seriously tested in [that] case" because to do otherwise would erode confidence in the recognized privilege). See also 8 John H. Wigmore, Evidence § 2285, at 527 (John T. McNaughton rev. 1961) (four conditions "are present in most of the recognized privileges"). We assume our legislature considered and accounted for the various policy concerns that underlie the four conditions when it codified the privilege in § 13-4062. See Samaritan Health Svcs. v. City of Glendale, 148 Ar iz. 394, 397, 714 P.2d 887, 890 (App. 1986) (" numerous [statutory] inroads . . . on the privilege" reflect that "the legislature has found certain societal interests sufficiently important to override the state's general interest in pr otecting confidential patient information from disclosure to third parties" ).
As the Michigan appellate court aptly stated:
e do not begin our statutory analysis by examining the general "pur pose" of a statute and then determining whether public policy concerns support application of the statute in particular factual circumstances. We must begin by examining the actual language of the statute. If that language is unambiguous, we must apply the statute as written. Childs, 622 N. W.2d at 93.
F ollowing that approach, we conclude that Wilson's communications to Krasner are pr ivileged under § 13-4062(4).
II. Implied Waiver or Statutory Abrogation of Privilege
The state next contends Wilson impliedly waived any privilege he may have had merely by filing a claim for workers' compensation benefits. The state, however, did not establish the traditional requir ements for implied waiver, and the cases on which the state relies do not support its position. See Bain v. Superior Court, 148 Ar iz. 331, 334, 714 P.2d 824, 827 (1986) (implied waiver occurs when " a privilege holder (1) offers himself as a witness and voluntarily testifies with reference to privileged communications concerning the condition, . . . or (2) places a particular medical condition at issue by means of a claim or affirmative defense"). See also Throop v. F. E. Young & Co. , 94 Ar iz. 146, 157-58, 382 P.2d 560, 567-68 (1963) (privilege impliedly waived when par ty defended by denying negligence and claiming sudden heart attack as cause of automobile accident); cf. Alexander v. Superior Court, 141 Ariz. 157, 163, 685 P. 2d 1309, 1315 (1984) (when client does not tr eat information divulged to counsel "as if it were privileged, " for example, by "testif[ying] to the information in an affidavit, which has become a matter of public record," any attorney-client privilege is " implicitly waived" as to that information).
In the course of litigation, a party may not use the privilege as "'both a swor d and a shield,'" for example, by asserting a particular factual pos
Page 1 2 3 4 5 6 7 8 9 Arizona Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|