When are a patient's words truly confidential? A newborn death case just gave doctors an important answer
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The State’s argument urges us to adopt a per se rule that whenever a third person is present who is not necessary for care or treatment while a patient communicates with their doctor, a waiver of confidentiality takes place, regardless of who the person is or of the circumstances.
—Michael E. Vigil, New Mexico Supreme Court Justice
Emergency physicians are accustomed to wearing two hats. On one hand, they’re responsible for diagnosing and treating critically ill patients. On the other hand, they often find themselves caring for patients who are also the subject of police investigations.
A recent ruling by the New Mexico Supreme Court underscores that those roles don’t always mix—and that physicians may inadvertently become central players in criminal proceedings if patient confidentiality isn’t carefully protected.[][]
Related: My patient's confidentiality became tricky businessWhile this case isn’t a malpractice verdict, it offers valuable risk-management lessons for clinicians about physician-patient privilege, documentation, and interactions with law enforcement.
What happened?
The case stems from the prosecution of a New Mexico teenager accused of killing or causing the death of her newborn after delivering him in a hospital bathroom in 2023.[][]
After hospital staff discovered the infant’s body, the patient’s emergency physician confronted her in an examination room. Police officers were present during the conversation after the physician invited them into the room, and the patient’s mother was also there.
During that exchange, the patient made statements that prosecutors later sought to use in a murder case against her. The defense argued that the statements were protected by New Mexico’s physician-patient privilege because they were made during medical treatment. The court agreed and suppressed the statements.
The court’s ruling
The New Mexico Supreme Court sided with the patient. The justices rejected the state’s argument that physician-patient privilege is automatically waived whenever a nonessential third party—such as a police officer—is present during a medical conversation.[]
Instead, the court concluded that waiver depends on the circumstances and whether the patient voluntarily waived the expectation of confidentiality. In this case, the court found she did not.
Importantly, the court noted that the physician—not the patient—had invited police into the room, and there was no evidence the patient knowingly intended to surrender the confidentiality of her communications. As a result, her statements to the physician cannot be introduced as evidence in the criminal prosecution.
“The State’s argument urges us to adopt a per se rule that whenever a third person is present who is not necessary for care or treatment while a patient communicates with their doctor, a waiver of confidentiality takes place, regardless of who the person is or of the circumstances,” the Court stated in an opinion written by Justice Michael E. Vigil.[]
Related: First, do no harm: Common ethical issues doctors may faceWhy this matters for physicians
For most clinicians, the legal doctrine may seem far removed from everyday practice. But the practical implications are significant.
Emergency physicians frequently care for patients involved in assaults, motor vehicle crashes, domestic violence, child abuse investigations, drug-related incidents, custody disputes, and criminal investigations.
It’s not uncommon for police officers to remain in the room while clinicians obtain a patient’s history. This ruling serves as a reminder that the physician’s primary obligation remains patient care—not evidence gathering.
Risk management takeaways
Several lessons emerge from this case.
Know your state’s privilege laws. Physician-patient privilege is governed by state law and varies considerably across jurisdictions. Some states recognize broad protections, while others carve out numerous exceptions.
Think carefully before allowing police into clinical conversations. Unless law enforcement presence is necessary for immediate safety or required by law, allowing officers to remain during history-taking could complicate both patient care and later legal proceedings.
Separate medical evaluation from investigation. Your questions should be directed toward diagnosis and treatment. Once conversations shift toward fact-finding for the purposes of a criminal investigation, the physician’s role becomes much less clear.
Document clinically. Medical records should accurately reflect information relevant to patient care. Avoid documenting speculative conclusions or adopting investigative language that extends beyond clinical findings.
The balance between patient trust and public safety
Cases involving newborn deaths understandably generate intense public attention and emotional reactions.
But the court emphasized a broader principle: Patients must be able to speak candidly with physicians if clinicians are to provide appropriate care.
If patients fear that anything they say during an emergency evaluation will automatically become evidence against them, they may withhold information that is essential for diagnosis or treatment. The physician-patient privilege exists largely to preserve that trust.