Karen P. v. Superior Court

Evidence Code 1 section 994 provides a patient with the power to prevent a third party from disclosing any “confidential communication” with a medical professional. The patient-litigant exception to this privilege (§ 996) indicates, in pertinent part, that the privilege is not applicable “to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by: [(R] (a) [t]he patient; [or] [][] (b) [a]ny party claiming through or under the patient . . . .”

The two issues presented concern the applicability of the patient-litigant exception to dependency proceedings:

(1) Does a child who is the subject of a Welfare and Institutions Code section 300 dependency petition tender the issue of his or her sexual history in the litigation, within the meaning of section 996, subdivision (a), by disclosing sexual abuse at the hands of a parent to authorities or by submitting to a forensic medical exam prior to the filing of the dependency petition?

(2) Does the department of children and family services become a “party claiming through or under the [child],” within the meaning of section 996, subdivision (b), by filing a Welfare and…