Ex parte contacts revisited.

• Author: Parsons, Ronald A., Jr.

When a plaintiff brings a legal claim, the physician-patient privilege is waived for the purpose of defending the action. In a medical malpractice action, for example, that means that attorneys retained to defend the action may therefore freely discuss the plaintiff's medical treatment with their clients--the physician and other medical personnel employed by the hospital or medical corporation that they represent--without the plaintiff or her attorney being present. But what about other physicians or employees of different medical entities who also treated the plaintiff and may have relevant information, but are not parties to the lawsuit? May defense counsel contact those providers and discuss the plaintiff's medical treatment without her presence or permission? The answer to that is typically a resounding "No." But does the analysis change where the same attorney or law firm defending the action also has an independent attorney-client relationship with treating physicians or personnel who are not parties to the lawsuit?

Despite decades of lingering controversy over the issue, the South Dakota courts have not squarely addressed the question of whether ex parte communications between defense counsel and a plaintiff's non-party physicians or other medical personnel, deemed impermissible under normal circumstances, should be blessed where defense counsel has an independent, attorney-client relationship with those witnesses.

The premise of this article is that we should collectively consider establishing some enforceable boundaries in what has become a nebulous zone, consisting of multiple, overlapping representations and competing duties and privileges. The absence of controlling guidance has created a void of uncertainty in which patients, medical care providers, and their attorneys maintain fundamental and unresolved disagreements regarding what is and is not permitted in terms of ex parte communications within the context of litigation. Concrete guidance on this often vexing issue would be of universal benefit in governing the actions of patients, medical providers, and attorneys.

1. HISTORY AND DEVELOPMENT OF THE MEDICAL PRIVILEGE IN SOUTH DAKOTA AS APPLIED TO CIVIL ACTIONS.

   Although this article concerns the appropriate process for obtaining and exchanging medical information, rather than the medical privilege itself, a chronological examination of the history of the medical privilege as it has been applied to civil proceedings in South Dakota is illuminating for consideration of these issues. (1)

   1. EARLY HISTORY

      The principle of medical confidentiality traces back well over two millennia to the timeless oath of Hippocrates, the fifth century B.C. Greek physician considered the father of medicine. In modernity, it has been enshrined in the American Medical Association's Principles of Medical Ethics (2) and codified as federal law. (3) It is well settled that there is an inherent fiduciary relationship between physician and patient premised upon the foundational principles of trust and confidentiality. The strong public policy supporting this fiduciary relationship is reflected in the South Dakota Supreme Court's recognition that a patient may bring a civil action against a physician for violation of the duty of confidentiality (4) and South Dakota statutes regulating the practice of medicine. (5) Under South Dakota law, "willfully betraying a professional confidence" is considered unprofessional or dishonorable conduct warranting severe sanctions, including loss of medical license and criminal penalties. (6)

      Protection of patient confidentiality as a matter of public policy and professional ethics, however, does not necessarily equate to the recognition of a legal privilege for purposes of litigation. As the South Dakota Supreme Court has noted, the common law did not recognize a legal privilege between doctors and their patients. (7) Nonetheless, the medical privilege has deep roots in the Dakotas, both in law and public policy, dating back at least to section 499(3) of the Territorial Revised Code of 1877. (8) In promulgating section 499, the Territorial Code Commission declared that "[t]here are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate," and provided that "[a] physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient." (9)

      Following statehood, the identical provision was preserved as section 538(3) of South Dakota's Code of Civil Procedure. (10) The Supreme Court's early decisions involving the medical privilege addressed whether particular information could be shielded from discovery, as opposed to the authorized methods by which such discovery could be obtained. In 1916, the Supreme Court observed that the medical privilege statute in section 538(3) was expressly limited to civil actions, and held that the privilege "should be strictly construed and held to apply only where the clear wording of the statute requires such a holding." (11) One year later, the Supreme Court held that the medical privilege found in section 538(3) did not prohibit a party from calling physicians to testify solely about the value of medical services. (12) "The general policy of these statutes is well understood," it explained. (13) The court further stated:

      It is sufficient to observe that these physicians testified only to the general character and value of the services rendered by plaintiff as a nurse, and were not examined and did not testify to any information acquired in attending their patients, necessary to enable them to prescribe or act for such patients. (14) For approximately the next half century, until the 1970's, the medical privilege statute appears to have remained in substantially identical form. However, the Code Commission renumbered section 538(3) of the Code of Civil Procedure as section 36.0101(3) of the South Dakota Code and the statute was amended to make clear that it extended beyondphysicians and surgeons to any "other regular practitioner[s] of the healing art." (15)

   2. HOGUE V. MASSA

      In 1963, the South Dakota Supreme Court granted a petition for intermediate appeal in order to address questions concerning "the right to interrogate a physician without the patient's consent on matters that are privileged under the physician-patient relationship, when his deposition in a civil action, is taken before trial for the purpose of discovery." (16) The Hogue case was an action for medical negligence brought by a patient and his wife against the husband's physician. The dispute at issue was whether the defendant physician could depose the plaintiff's subsequent physician regarding his care and treatment of the plaintiff, or whether such information was protected from discovery by the medical privilege reclassified as S.D.C. 1960 Supp. 36.0101(3). (17) "The answer," the Supreme Court concluded, "depends on whether there has been a waiver of the privilege." (18)

      In conducting its analysis, the Supreme Court first recognized that the medical privilege as embodied by statute "expresses a long-standing public policy to encourage uninhibited communication between a physician and his patient." (19) Next, the court overruled its 1916 holding in In re Galder's Estate (20) that the medical privilege should be strictly construed. Referring to a previously overlooked provision of the civil code requiring the medical privilege to be "liberally construed with a view to effect its objects and promote justice," the court explained that, "[i]n obedience to this legislative mandate it is our duty to effectuate the purposes of the statute. In other words, it [the medical privilege] is to be liberally construed in favor of the patient." (21)

      Next, the Supreme Court discussed the circumstances that might establish a waiver of the medical privilege under South Dakota law. It held that the medical privilege could be waived pursuant to statute or voluntarily surrendered in various ways, none of which it deemed applicable under the circumstances. (22) Finally, it made clear that any changes to the contours of the medical privilege or the circumstances constituting waiver were matters within the purview of the Legislature. (23)

      The statutory framework of the medical privilege has undergone substantial modification since Hogue, most significantly with the adoption of statutes containing a limited waiver of the privilege for patients who bring litigation implicating their mental or physical condition. Nonetheless, the decision has enduring significance, both in its confirmation of the principle that medical privilege statutes are to be construed liberally in favor of patients, and in its implicit recognition that, where there has been a waiver of the medical privilege, the appropriate method for discovery of medical information from a treating physician is a "deposition in a civil action," that "is taken before trial for the purpose of discovery." (24) When the South Dakota Codified Laws were compiled by the Code Commission in 1967, SDC 1960 Supp. 36.0101(3) morphed into S.D.C.L. section 19-2-3. At approximately the same time, some additional statutes were passed related to legal privileges generally, including S.D.C.L. section 19-2-6 (repealed in 1979), which provided for a waiver of a legal privilege when the holder of the privilege "testified as to any particular communication." (25)

   3. SCHAFFER V. SPICER

      The South Dakota Supreme Court's next formal encounter with the medical privilege occurred in 1974, involving a claim brought by a patient against one of her physicians for breaching the privilege. (26) Betty Schaffer and her recently divorced husband, Virgil Schaffer, were embroiled in a child custody dispute. (27) In an attempt to demonstrate why the children should remain with him...