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19-19-503Physician and psychotherapist-patient privilege.

(a) Definitions. As used in this section:

(1)    A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist;

(2)    A "physician" is a person authorized in any state or nation to engage in the diagnosis or treatment of any human ill, or reasonably believed by the patient so to be;

(3)    A "psychotherapist" is:

(A)    A person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction; or

(B)    A person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged;

(4)    A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of 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 or psychotherapist, including members of the patient's family.

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

(c) Who may claim privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

(d) Exceptions.

(1)    Proceedings for hospitalization. There is no privilege under this section for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

(2)    Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

(3)    The privilege under subdivision (b) as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient is waived at trial or for the purpose of discovery under chapter 15-6 in any proceeding in which the condition is an element of the patient's claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of a claim or defense.

Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 503); SL 2001, ch 103, § 1; SL 2003, ch 121, § 1; SDCL §§ 19-13-6 to 19-13-11.


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