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The privilege was not recognized under common law. This privilege is statutory and is based on the policy of encouraging full disclosure to aid in the effective treatment of illness. Most states only allow the privilege to be asserted in civil actions. This privilege is held by the patient. The following elements must be established in order to claim the privilege: (1) Physician; (2) Communications and information obtained; and (3) Professional consultation. The privilege does not apply in suits for personal injury by a patient, for competency, for guardianship, for commitment proceedings, for deceased patients, for malpractice cases, and for illegal purposes.

The physician-patient privilege did not exist at common law; it was created by statute, with New York having the first such statute in the nation, now codified at CPLR 4504 (see Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 529, 779 NE2d 173, 749 NYS2d 462 [2002]; Dillenbeck v Hess, 73 NY2d 278, 283, 536 NE2d 1126, 539 NYS2d 707 [1989]). That statute provides that, 'unless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he [or she] ...

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