Can physicians claim patient privilege to shield themselves from criminal investigations? Burns v. Boyden Explained

In Burns v. Boyden, 2006 UT 14, the Utah Supreme Court addressed whether a physician can invoke the physician-patient privilege to protect himself from a criminal investigation into alleged insurance fraud.

Background and Facts

Dr. Brian Burns operated chiropractic clinics that came under investigation by the Attorney General’s Office for allegedly fraudulent billing practices. The Workers’ Compensation Fund complained that Burns was submitting insurance claims under the names of medical doctors who had not actually treated patients. The state obtained a secrecy order under the Subpoena Powers Act and served Burns with a subpoena for over 300 patient records. Burns moved to quash the subpoena, arguing that the physician-patient privilege protected the records and that the secrecy order violated his due process rights.

Key Legal Issues

The court addressed two primary questions: (1) whether Rule 506 of the Utah Rules of Evidence allows a physician to claim the physician-patient privilege during a criminal investigation to shield allegedly fraudulent billing practices, and (2) whether a secrecy order covering the investigation violates constitutional due process rights.

Court’s Analysis and Holding

The court held that while the physician-patient privilege applies during criminal investigations under the Subpoena Powers Act, the state successfully rebutted the presumption under Rule 506(c) that Burns had authority to claim the privilege on behalf of his patients. The court found that Burns was asserting the privilege for his own benefit rather than to protect patient confidentiality. Evidence supporting this conclusion included Burns’s simultaneous attack on the secrecy order—the very mechanism protecting patient information from public disclosure. The court also found the secrecy order constitutional, noting that Burns had adequate information about the investigation and sufficient procedural protections.

Practice Implications

This decision establishes that Rule 506(c)’s presumption allowing physicians to claim privilege “on behalf of the patient” is rebuttable. When challenging such claims in fraud investigations, practitioners should gather evidence demonstrating that the physician seeks personal protection rather than patient confidentiality. The court’s analysis suggests that actions inconsistent with protecting patient privacy—such as challenging protective orders—can support rebuttal arguments. Additionally, the decision confirms that criminal investigations under the Subpoena Powers Act can proceed with appropriate secrecy orders without violating constitutional rights, provided adequate procedural safeguards exist.