Hopefully you have an attorney for a medical malpractice action. That is not an area of law that lends itself to DIY, especially when the opponent is represented by counsel. The husband-wife privilege might be attacked, but not easily by a pro se litigant.
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Based on the nature of the testimony you can expect the plaintiff attorney to object and that will lead to a court hearing and ruling. Do not attempt to argue such an intricate legal position on your own. Hire an attrorney Good luckl.
That is a technical question that half the competent attorneys in your state would want to research before answering confidently. In most states the privilege is absolute, but can be waived.
I strongly advise you to get an attorney. Good luck.
I agree with my colleagues
Expect to lose any med mal case without a lawyer.
Expect the privilege to be challenged.
Get yourself a lawyer of this litigation is important to you!
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Husband-wife privilege can apply, even in cases where they are not named parties. Whether or not that privilege can be attacked depends on a lot of factors, such as necessity, whether the other party (the spouse that made whatever statements you're looking for) may be deposed, etc. If her husband could be at all at risk in this case, the likelihood is that the privilege would apply, but from the scant facts posted, it would be difficult to discern if there is a valid way around the issue.
I presume you either have an attorney or are a lawyer yourself to ask such a question. If you are an attorney, I would get in contact with other attorneys who work in med mal in your area. Also, if you pay IICLE to get your CLE's, I believe there is a special CLE on the various privileges (doctor-patient, husband-wife, attorney-client, etc.) that you should be able to stream or buy. Getting an extra CLE credit or two can't hurt either.
If you are not an attorney, I strongly suggest either talking about this to the one you have retained, or, if you haven't retained one, retaining a lawyer immediately. Medical malpractice is an area that requires a lot of specialized knowledge and it will be very difficult to recover without an attorney.
Marital communications are privileged, if I remember the bar correctly.
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