Monday, June 06, 2011

DUI Appeal - Nevada Rejects Paramedic Privilege

In Rogers v. State of Nevada, --- P.3d ----, 2011 WL 2162759 (Nev.), 127 Nev. Adv. Op. 25, the defendant was convicted by a jury of driving under the influence of a controlled substance (marijuana) causing substantial bodily harm, for which he was sentenced to serve 24 to 60 months in prison. Part of the evidence the jury heard came from a paramedic who took Rogers by ambulance to the hospital. At the hospital Rogers consented to a blood test, which came back positive for marijuana. Earlier, Rogers had asked Friedlander not to tell the police about his marijuana use. Torn between his conflicting duties to Rogers and to the public, Friedlander sought advice from another EMT, who advised Friedlander to pass the information along to the Highway Patrol officer investigating the accident, which Friedlander did. The paramedic testified that Rogers confided that he had smoked marijuana before the accident. On appeal Rogers argued that his statement to the paramedic was inadmissible because it was protected by Nevada's doctor-patient privilege.

Rogers bases his EMT- or paramedic-patient privilege claim on the doctor-patient privilege. The doctor-patient privilege did not exist at common law. 2 C. Mueller & L. Kirkpatrick, Federal Evidence § 5.42 (3d ed.2010) (discussing Lord Mansfield's comments, in Duchess of Kingston's Trial, 20 Howell's State Trials 355, 573 (H.L.1776), that a physician committed no indiscretion when he revealed communications between himself and his patient “in a court of justice”). Its existence and scope depend on statute. Id. In Nevada, the doctor-patient privilege is codified at NRS 49.215–.245. NRS 49.225 states the general rule of doctor-patient privilege, as follows:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among the patient, the patient's doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient's family.

On appeal, the appellate court held that a paramedic did not qualify as a "doctor" for purposes of the privilege, and that therefore the statement made to the paramedic was not covered as a privileged communication by the statute:

The Legislature recognizes and regulates EMTs as professionals whose services are “necessary for the health and safety of the people of Nevada.” NRS 450B.015; see NRS Chapter 450B. Over the years, the Legislature has expanded the definition of “doctor” for purposes of the doctor-patient privilege from the narrow Nevada-licensed “physician or surgeon” definition set forth in Fouquette, 67 Nev. at 536–37, 221 P.2d at 420–21, to encompass any person licensed or reasonably believed to be licensed under the laws of any state or nation to practice medicine, dentistry, or osteopathy, or who is employed as a psychiatric social worker. NRS 49.215(2). Despite this expansion, the Legislature has not included EMTs or paramedics in NRS 49.215(2)'s definition of “doctor.” As first responders, EMTs see and hear things that later witnesses can only surmise or reconstruct. Applying the narrow construction conventional to this court's interpretation of testimonial privilege statutes, we conclude that the doctor-patient privilege in NRS 49.225 does not apply to communications between an EMT or paramedic and patient when those communications do not occur in the presence, or at the direction, of a doctor, as defined in NRS 49.215(2). Accord Med–Express, Inc. v. Tarpley, 629 So.2d 331, 332 (La.1993) (because “ambulance technicians [are] not physician[s]' as [defined by statute], there is no privilege”); State v. LaRoche, 442 A.2d 602, 603 (N.H.1982) (“[t]he statute ... by its terms, applies only to physicians and surgeons and those working under their supervision [; s]ince EMT's are not physicians or surgeons, and there was no evidence that the EMT's were working under the supervision of a physician or surgeon, the privilege cannot protect the defendant's admission in the ambulance”); State v. Ross, 947 P.2d 1290, 1292 (Wash.Ct.App.1997) (a privilege statute covering statements “to physicians, surgeons, or osteopathic physicians or surgeons” does cover communications to a “responding paramedic”).

The court, in order to ensure that this defendant's conviction would stick, further cemented its position as follows:

Accepting Rogers' argument that, because an EMT is required by law to report to a medical director, this makes communications between an injured person and an EMT privileged would in effect expand the doctor-patient relationship to cover all EMT-patient communications and ignore the plain language in NRS 49.225. We recognize that a policy argument can be made that people who receive EMT services should enjoy the protections of the doctor-patient privilege for communications between them and the first responders. See People v. Mirque, 758 N.Y.S.2d 471, 477 (Crim.Ct.2003) (“A patient bound for the hospital by ambulance should not be required to master the rules of agency before speaking freely”; extending New York's physician-patient privilege to reach a patient's statement to an EMT); contra People v. Ackerson, 566 N.Y.S.2d 833, 834 (County Ct.1991). However, we cannot ignore the substantial competing concern with availability of evidence, particularly in the first-responder setting. Many of the cases addressing EMT-privilege or paramedic-privilege claims have arisen in the context of prosecutions for driving under the influence of drugs or alcohol. State v. Gates, No. 09–1241, 2010 WL 2598334 (Iowa Ct.App. Jun. 30, 2010); People v. Mirque, 758 N.Y.S.2d 471 (Crim.Ct.2003); State v. Barrett, No. CA2003–10–261, 2004 WL 2340658 (Ohio Ct.App. Oct. 18, 2004); State v. Ross, 947 P.2d 1290 (Wash.Ct.App.1997). It is for “the Legislature, not the court, ... to extend the literal language of the [doctor-patient] privilege [statute] to include paramedics.” Ross, 947 P.2d at 1293; Darnell, 674 N.E.2d at 22 (“were we to recognize that all communications between [emergency responders] and patients were privileged, we would be limiting the amount of testimony which could be offered at trial and, thereby, impeding the search for truth,” a “policy decision[ best left] to the legislature”); see also NRS 49.015(1) (providing that there are no testimonial privileges other than those required by the United States or Nevada Constitutions or provided by statute).

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