A. Except at the request or with the consent of the patient, or as provided in this section, no duly licensed practitioner of any branch of the healing arts shall be permitted to testify in any civil action, respecting any information that he may have acquired in attending, examining or treating the patient in a professional capacity.
§ 8.01-399.Communications between physicians and patients (Supreme Court Rule 2:505 derived from this section).
Chapter 14. Evidence · Article 4. Witnesses Generally · Last amended 2009 · Last verified July 16, 2026
In one sentenceThis section bars a healthcare practitioner from testifying about information gained while treating a patient unless the patient consents, but requires disclosure of treatment records once the patient’s condition is at issue, restricts direct lawyer-to-practitioner contact outside formal discovery, and lists narrow carve-outs including workers’ compensation and legally required reporting.
Full Text of § 8.01-399
B. If the physical or mental condition of the patient is at issue in a civil action, the diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of the practitioner, obtained or formulated as contemporaneously documented during the course of the practitioner's treatment, together with the facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony at the trial of the action. In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. However, no order shall be entered compelling a party to sign a release for medical records from a health care provider unless the health care provider is not located in the Commonwealth or is a federal facility. If an order is issued pursuant to this section, it shall be restricted to the medical records that relate to the physical or mental conditions at issue in the case. No disclosure of diagnosis or treatment plan facts communicated to, or otherwise learned by, such practitioner shall occur if the court determines, upon the request of the patient, that such facts are not relevant to the subject matter involved in the pending action or do not appear to be reasonably calculated to lead to the discovery of admissible evidence. Only diagnosis offered to a reasonable degree of medical probability shall be admissible at trial.
C. This section shall not (i) be construed to repeal or otherwise affect the provisions of § 65.2-607 relating to privileged communications between physicians and surgeons and employees under the Workers' Compensation Act; (ii) apply to information communicated to any such practitioner in an effort unlawfully to procure a narcotic drug, or unlawfully to procure the administration of any such drug; or (iii) prohibit a duly licensed practitioner of the healing arts, or his agents, from disclosing information as required by state or federal law.
D. Neither a lawyer nor anyone acting on the lawyer's behalf shall obtain, in connection with pending or threatened litigation, information concerning a patient from a practitioner of any branch of the healing arts without the consent of the patient, except through discovery pursuant to the Rules of Supreme Court as herein provided. However, the prohibition of this subsection shall not apply to:
1. Communication between a lawyer retained to represent a practitioner of the healing arts, or that lawyer's agent, and that practitioner's employers, partners, agents, servants, employees, co-employees or others for whom, at law, the practitioner is or may be liable or who, at law, are or may be liable for the practitioner's acts or omissions;
2. Information about a patient provided to a lawyer or his agent by a practitioner of the healing arts employed by that lawyer to examine or evaluate the patient in accordance with Rule 4:10 of the Rules of Supreme Court; or
3. Contact between a lawyer or his agent and a nonphysician employee or agent of a practitioner of healing arts for any of the following purposes: (i) scheduling appearances, (ii) requesting a written recitation by the practitioner of handwritten records obtained by the lawyer or his agent from the practitioner, provided the request is made in writing and, if litigation is pending, a copy of the request and the practitioner's response is provided simultaneously to the patient or his attorney, (iii) obtaining information necessary to obtain service upon the practitioner in pending litigation, (iv) determining when records summoned will be provided by the practitioner or his agent, (v) determining what patient records the practitioner possesses in order to summons records in pending litigation, (vi) explaining any summons that the lawyer or his agent caused to be issued and served on the practitioner, (vii) verifying dates the practitioner treated the patient, provided that if litigation is pending the information obtained by the lawyer or his agent is promptly given, in writing, to the patient or his attorney, (viii) determining charges by the practitioner for appearance at a deposition or to testify before any tribunal or administrative body, or (ix) providing to or obtaining from the practitioner directions to a place to which he is or will be summoned to give testimony.
E. A clinical psychologist duly licensed under the provisions of Chapter 36 (§ 54.1-3600 et seq.) of Title 54.1 shall be considered a practitioner of a branch of the healing arts within the meaning of this section.
F. Nothing herein shall prevent a duly licensed practitioner of the healing arts, or his agents, from disclosing any information that he may have acquired in attending, examining or treating a patient in a professional capacity where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of a practitioner's legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law.
Plain-English Summary
Patients tell doctors things they would not tell anyone else, and the law protects that candor by default. Section 8.01-399 keeps a licensed healing-arts practitioner from testifying about what he learned while treating a patient, unless the patient asks or consents — or unless one of the statute’s exceptions applies.
The biggest exception matters most in personal injury litigation: once the patient’s physical or mental condition becomes an issue in the case, the practitioner’s diagnoses, symptoms, observations, and treatment records must come out — but only through formal discovery or trial testimony, not through informal lawyer contact. A court cannot force a party to sign a blanket medical-records release unless the provider sits outside Virginia or is a federal facility, and any disclosure order must be limited to records tied to the conditions at issue in the case.
The section also polices how lawyers reach out to the other side’s treating providers. A lawyer cannot get patient information straight from a practitioner without consent, except through the formal Rules of Court discovery process — though the statute carves out specific, limited contacts, like scheduling, verifying treatment dates, or explaining a subpoena, so long as any information that touches the substance of the case is shared with the patient’s side too.
A handful of other carve-outs round the section out: it does not disturb the separate workers’ compensation privilege, does not protect communications made to unlawfully obtain drugs, and does not stop a practitioner from disclosing information required by state or federal law or needed for the patient’s own care, the provider’s legal rights, or a facility’s operations. Clinical psychologists count as healing-arts practitioners for all of this.
Frequently Asked Questions
Can a doctor be forced to testify about a patient’s treatment in a Virginia civil case?
Not without the patient’s request or consent, except as this section otherwise provides — but once the patient’s physical or mental condition is at issue in the action, the relevant diagnoses, records, and facts must be disclosed through discovery or trial testimony.
Can a court order me to sign a release for my medical records?
Generally no — no order compelling a party to sign a release for medical records from a health care provider may be entered unless the provider is located outside the Commonwealth or is a federal facility.
Can opposing counsel call my treating doctor directly to discuss my case?
No, except through discovery under the Rules of Supreme Court, though the section allows limited contact for things like scheduling appearances, verifying treatment dates, or explaining a subpoena, with certain contacts requiring the patient or attorney to be copied.
Are clinical psychologists covered by this privilege?
Yes, a clinical psychologist duly licensed under Chapter 36 of Title 54.1 is considered a practitioner of a branch of the healing arts within the meaning of this section.
Does this privilege protect communications made to obtain drugs unlawfully?
No, the section does not apply to information communicated to a practitioner in an effort to unlawfully procure a narcotic drug or its administration.
Amendment History
Code 1950, § 8-289.1; 1956, c. 446; 1966, c. 673; 1977, c. 617; 1993, c. 556; 1996, cc. 937, 980; 1998, c. 314; 2002, cc. 308, 723; 2005, cc. 649, 692; 2009, c. 714.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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