Does physician-patient privilege protect communications made to unlawfully obtain drugs? State v. Anderson Explained

Background and Facts

In State v. Anderson, the defendant was charged with twenty felony counts of fraudulently obtaining controlled substances by prescription. Between March and November 1994, Anderson visited six different physicians and obtained prescriptions for the controlled substance Tussionex without disclosing that he was receiving the same substance from other doctors. At the preliminary hearing, all six physicians testified about their treatment of Anderson without any objection from defense counsel regarding physician-patient privilege. Before trial, Anderson filed a motion in limine seeking to exclude the physicians’ testimony and records under Utah Code Ann. § 78-24-8 and Utah Rule of Evidence 506.

Key Legal Issues

The Utah Court of Appeals addressed two primary issues: whether physician-patient privilege protected Anderson’s communications with his doctors when those communications were made for the unlawful purpose of obtaining controlled substances, and whether Anderson waived the privilege by failing to assert it at the preliminary hearing.

Court’s Analysis and Holding

The court first determined that the statutory privilege in Utah Code Ann. § 78-24-8 applies only to civil proceedings and therefore did not protect Anderson in this criminal case. Regarding Rule 506, the court found that Utah Code Ann. § 58-37-6(9) creates an exception to physician-patient privilege, providing that “[a]ny information communicated to any licensed practitioner in an attempt to unlawfully procure, or to procure the administration of, a controlled substance is not considered to be a privileged communication.” The court reasoned that Anderson’s underlying purpose in consulting multiple doctors was to unlawfully procure drugs, which fell squarely within this statutory exception. Additionally, the court held that Anderson waived the privilege by failing to object to the physicians’ testimony at the preliminary hearing, making any subsequent assertion of the privilege ineffective.

Practice Implications

This decision establishes that physician-patient privilege cannot shield communications made for unlawful purposes, particularly when seeking controlled substances through fraud. Defense counsel must be vigilant about asserting privileges at preliminary hearings, as failure to do so may constitute an irrevocable waiver for all subsequent proceedings.