State v. Andring , 1984 Minn. LEXIS 1199 ( 1984 )

SCOTT, Justice

(dissenting).

We should hold that Minn.Stat. § 626.-556, subd. 8 (1982), abolishes the medical privilege in cases involving the sexual abuse of children and that defendant may not claim the privilege with respect to any statements made at Bethesda concerning his sexual activity with minors, regardless of whether the statements were made during group therapy, one-on-one therapy, or to the nurse taking a social history. A brief review of our statutory scheme is appropriate.

The medical privilege exists not by any constitutional mandate, but by virtue of Minn.Stat. § 595.02 (1982), which provides in part:

Every person of sufficient understanding, including a party, may testify in any action or proceeding, civil or criminal, in court or before any person who has authority to receive evidence, except as follows:

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(4) A licensed physician or surgeon, dentist, or chiropractor shall not, without the consent of his patient, be allowed to disclose any information or any opinion based thereon which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity; after the decease of the patient, in an action to recover insurance benefits, where the insurance has been in existence two years or more, the beneficiaries shall be deemed to be the personal representatives of the deceased person for the purpose of waiving this privilege, and no oral or written waiver of the privilege shall have any binding force or effect except when made upon the trial or examination where the evidence is offered or received.

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(7) A registered nurse, psychologist or consulting psychologist shall not, without the consent of his client, be allowed to disclose any information or opinion based thereon which he acquired in attending the client in a professional capacity, and which was necessary to enable him to act in that capacity.

I agree with the majority that the statutory privileges recited above extend to statements made during group psychotherapy. It is nonetheless clear that the legislature has completely eliminated the privilege in cases such as this arising out of the sexual abuse of children. Minn.Stat. § 626.556, subd. 8, eliminates the medical privilege for evidence concerning a child’s injuries in proceedings arising out of the physical or sexual abuse of children:

No evidence regarding the child’s injuries shall be excluded in any proceeding arising out of the alleged neglect or physical or sexual abuse on the grounds of either a physician-patient or husband-wife privilege.

In the leading case of State v. Fagalde, 85 Wash.2d 730, 539 P.2d 86 (1975), the Washington Supreme Court interpreted a similar statutory scheme in which the legislature had both granted a privilege for those obtaining alcohol treatment and restricted it in child abuse cases. In recognizing this apparent inconsistency, the court said:

[I]t is evident that, in its recent enactments, the legislature has attached greater importance to the reporting of incidents of child abuse and the prosecution of perpetrators than to counseling and treatment of persons whose mental or emotional problems cause them to inflict such abuse.

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* * * These statutes can be reconciled upon the following interpretation: The legislature has expressed an intent to protect the confidentiality of communications made in the physician-patient and psychologist-patient relationship, except where they relate to child abuse; and in this area the interest in discovery of cases of such abuse and in protecting the child from future recurrences is found to be overriding. Prosecution of the offender is contemplated as properly incidental to at least the latter purpose. The interest in encouraging the child abuser to seek treatment is subordinated to this aim.

Id., at 736-37, 539 P.2d at 90 (1975).

I would follow the reasoning of Fagalde and hold that the legislature intended to bar reliance on the medical privilege in proceedings arising out of child abuse. The medical privilege is a statutory privilege, not a constitutional right, State v. Enebak, 272 N.W.2d 27, 30 (Minn.1978), and the legislature has the power to limit or vary the privilege it has granted. In re D.M.C. and R.L.R., Jr., 331 N.W.2d 236, 238 (Minn.1983). See Minn.Stat. § 626.52 (1982) (limiting the privilege for gunshot wounds). The enactment of § 626.556, subd. 3, requiring reporting of child abuse; § 626.556, subd. 4, granting immunity for those making such reports; and § 626.556, subd. 8, eliminating the medical and husband-wife privilege in child abuse cases, reflects a legislative intent that in such cases the courts are to have full access to all relevant facts. It also reflects a legislative understanding of the difficulties of proof ordinarily present in child abuse cases. I would find that the societal interest in protecting children and the loss which comes from depriving the courts of a reliable source of facts necessary for the right decision of cases outweigh the potential injury to the physician-patient relationship and the program.

TODD, Justice.

I join in the dissent of Justice SCOTT.

KELLEY, Justice.

I join in the dissent of Justice SCOTT.