Cited by

Subsequent cases rotely cited Kupchun for the proposition that the physician-patient privilege “will yield” to “sufficiently compelling countervailing considerations,” In re Kathleen M., 126 N.H. 379, 382 (1985), or an “essential” need for disclosure, State v. Elwell, 132 N.H. 599, 605 (1989), superseded by statute as stated in Desclos v. S. N. H. Med.

State v. Elwell, 132 N.H. 599, 603 (1989) (discussing former physician-patient privilege law), superseded in part on other grounds by RSA 329:26.

State v. Elwell, 132 N.H. 599, 603, 567 A.2d 1002 (1989) (discussing former physician-patient privilege law), superseded in part on other grounds by RSA 329:26.

State v. Elwell, 132 N.H. 599, 603 (1989) (decided under prior law).

503.” State v. Elwell, 132 N.H. 599, 603 (1989) (decided under prior law).

The therapist-client privilege, like most testimonial privileges, is not absolute and we have recognized that certain privileges must “yield when the disclosure of information is essential.” State v. Elwell, 132 N.H. 599, 605 (1989), superseded in part on other grounds by RSA 329:26 (Supp. 2008).

Generally, there are two means by which disclosure of privileged information may occur: (1) the court finds a waiver of the privilege, Petition of Dean, 142 N.H. 889, 890 (1998); or (2) the court orders a piercing of the privilege, State v. Elwell, 132 N.H. 599, 605 (1989).

Thus, when construing the physician-patient privilege, we do so strictly.

The trial court ruled that disclosure of the defendants’ records was essential because the police had insufficient opportunity to assess whether the defendants suffered “serious bodily injury” and because no competent alternative source of dispositive information was available.

State v. Elwell, 132 N.H. 599, 605-06 (1989); see also Super.

RSA 329:26 (1995) (amended 1995, 1996); see also State v. Elwell, 132 N.H. 599, 604-05, 567 A.2d 1002, 1005 (1989).

The privilege is conferred entirely by statute; it did not exist at common law.

In this inquiry, the fact that other evidence might be sufficient to find the defendant guilty is not dispositive.

We cannot say beyond a reasonable doubt that the testimony did not affect the verdict, see State v. Elwell, 132 N.H. 599, 607, 567 A.2d 1002, 1007 (1989), and we therefore reverse the defendant’s convictions.

After reviewing the record, we cannot say beyond a reasonable doubt that the expert testimony did not affect the verdict, see State v. Elwell, 132 N.H. 599, 607, 567 A.2d 1002, 1007 (1989), and, therefore, we do not find the error harmless.

We cannot say beyond a reasonable doubt that her testimony did not affect the verdict, see State v. Elwell, 132 N.H. 599, 607, 567 A.2d 1002, 1007 (1989), and therefore reverse the defendant’s convictions.

To rule that this error was harmless, we must be able to find beyond a reasonable doubt that the error did not affect the verdict.

The erroneous admission of hearsay evidence is harmless when it can be said “beyond a reasonable doubt that the inadmissible evidence did not affect the verdict.” State v. Elwell, 132 N.H. 599, 607, 567 A.2d 1002, 1007 (1989); State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976).