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Ed Smith

I take issue that what is discussed between treating Dr. and Plaintiff's lawyer is not priveleged.

In most states that discussion may encompass medical conditions protected by the clients right to privacy and the attorney-client privilege.

I have always resisted any attempt by the defense themto probe this area and never had
them force the issue.

I enjoy honestly your site, but feel you are
off base on this.

Ed Smith ATLA member
Sacraento, CA


Thanks for the comment. This site deals mainly with Illinois law. Unless otherwise noted, I'm discussing Illinois law. I know this might cause some confusion, and I admit I don't make this point clear in every post, so I titled the weblog "The Illinois Trial Practice Weblog." Hopefully this avoids some confusion.

I certainly can't speak to CA law. But in Illinois, when you bring a lawsuit about body part A, you waive the privilege about body part A, and perhaps other body part letters as well. Perhaps it's attributable to my days as a defense lawyer, but I don't fight about giving the other side information about medical unless it deals with psychiatric care, in which event I take it case by case. I don't think there is anything to be gained by it in most cases; though if there is something to be lost, I might choose to fight a particular battle, a second exception to the general rule.

As for my conversations with doctors, I don't consider them privileged. (Same goes for my conversations with experts.)


Upon further reflection, I think this blog might benefit from some posts about the waiver of doctor-patient privilege in Illinois, a topic I might tackle in the near future.

I should also note that when I say "I don't fight about giving the other side information about medical," it's with my client's informed consent. I fully respect the doctor-patient privilege, and I think my credentials on this point are pretty clear, given that I was writing about the importance of this issue for newspapers like the Chicago Tribune long before the new federal law was enacted. These articles are collected on my law firm's website at


I wonder if Mr. Smith could give us some citations supporting his view that conversations between an attorney and a non-party doctor who is about to be deposed are "privileged." It seems to me that if there truly was any privilege to begin with, counsel would have moved for a protective order long before and the deposition would never have taken place.

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