Physicians as experts against their own patients? What happened to the privilege?

• Author: Oppenheim, Elliott B.
• Position: Washington

Two cases decided by the Washington Supreme Court in 1994 - Carson v. Fine(1) and Christensen v. Munsen(2) - have diminished the physician-patient privilege in that state to meaninglessness and may have a profoundly negative effective on the privilege in other jurisdictions.

The cases concerned the narrow issue of whether, under Washington state law in a medical negligence action, a current treating physician violates the physician-patient privilege when that physician testifies on behalf of a defendant physician on the standard of care. The consequence of the decisions is that the physician-witness's position does not benefit his patient and creates a conflict between medical ethics and the requirements of the law for the testifying physician, and violates the legal privilege between the physician and the patient. The opinions in the cases also considered the inherent prejudicial effect this testimony would have on juries and the ability of plaintiffs to receive fair trials When subsequent treating physicians conclude that there was no negligence in the treatment by defendant physicians.

For physicians and patients, the decisions present a medical and legal anomaly in which it appears that a historically fostered and protected relationship is endangered. How is it possible that current treating physicians would be permitted under medical ethics and legal precedents to testify against their own patients, even when the patients have placed their medical condition at issue.3 While both medicine and law appear to reconcile the dilemma of defendant-physicians testifying against their former patients, what a conundrum it becomes when current treating physicians testify against their patients.

What happens to the loyalty and the fiduciary duty(4) physicians owe their patients and that patients need in order to seek treatment? What patients would share sensitive information about their personal condition with their physicians if there might be a possibility that their physicians could divulge this in public litigation?

Using case law and public policy precedents, the Washington Supreme Court attempted to make sense of the tangle but failed to settle the issue in a legally and ethically satisfactory way for anyone who participates in health care as either a provider or recipient. These cases represent a major medical and legal challenge.

THE CASES

Section 5.60.060(4) of the Revised Code of Washington provides:

(4)(a) A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient....

(b) Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules.

1. Carson v. Fine

   In order to deliver Carmen Carson's first baby, Dr. Betsy Fine performed an episiotomy that developed into a fourth-degree laceration. Fine attempted unsuccessfully to repair it, and Carson consulted another physician, who diagnosed a rectovaginal fistula. After another unsuccessful repair, Carson then saw Dr. Aaron Kemp, who performed a third unsuccessful surgery. Carson remained incontinent and sued Klatt, but that suit was dismissed.

   Pregnant with her second child, she next saw Dr. Johann Duenhoelter. He was aware of her condition and delivered the baby by caesarean section. Carson and her husband then sued Fine.

   In connection with this suit, she agreed to an order waiving her physician-patient privilege with regard to all treating physicians but not with four experts she consulted in anticipation of litigation. By the order, the defense was permitted ex parte interviews with her treating physicians. At the time of the order, Duenhoelter was a treating physician. In an ex parte interview, he gave the opinion that Fine's conduct was not negligent and within the standard of care. The defense then listed him as an expert witness, and then took his deposition, at which he testified consistently with his ex parte interview.

   Prior to Duenhoelter's deposition, the Washington Supreme Court had decided Loudon v. Mhyre,(5) in which it announced a rule prohibiting ex parte communications between defendants and plaintiffs, treating physicians. The Carsons argued in a pretrial motion for exclusion of Duenhoelter's expert testimony, asserting that the privilege and the fiduciary relationship between the doctor and patient should prohibit a treating physician from testifying as an expert witness against his own patient. The plaintiffs also based their motion on Washington Rule of Evidence 403, claiming that the testimony would be cumulative and unfairly prejudicial. The trial court denied the motion, the jury heard Duenhoelter's testimony, and the plaintiff lost.

   The intermediate court reversed and remanded, holding that while the privilege did not bar Duenhoelter from testifying as an expert, that the ex parte contacts did not violate the Loudon rule, and that Carson had waived any privilege when she permitted ex parte contacts, nevertheless Rule 403 required the trial court to use six factors to weigh the probative value of the testimony against the danger of unfair prejudice. The trial court had not done this.

   On review, the Washington Supreme Court considered the purpose and scope of the physician-patient privilege, stating, in reliance on two of its former cases known as Latta(6) and Boehme,(7) that the privilege is a creature of statute and not a rule of substantive or constitutional law. The court then proceeded through a detailed case analysis and finally held (1) that the waiver of the physician-patient privilege extended to all knowledge of the plaintiffs' physicians, whether fact or opinion; (2) that the physician-patient privilege barring opinion testimony of the patient's current treating physician was waived by the voluntary order Carson signed, and (3) that Duenhoelter's testimony was properly admitted.

2. Christensen v. Munsen

   This, too, was a medical negligence action in which Dr. Richard Munsen, an ophthalmologist, treated Maren Christensen over a seven-year period for an eye inflammation, pars planitis. After five frustrating years of treatment, Christensen sought a second opinion from Dr. Richard Mills, a professor of ophthalmology and a glaucoma specialist at the University of Washington. After Christensen lost all vision, she sued Munsen, alleging that he failed to follow the standard of care and to obtain informed consent.

   During the trial, Munsen called Mills to testify on his behalf, and stated that he thought the glaucoma was more related to the patient's underlying disease process rather than to any treatment Munsen provided. Prior to his testimony, Christensen acknowledged in an offer of proof that Mills could testify about facts acquired during the course of treatment, but she argued that his adverse opinion testimony on causation breached his fiduciary duty to her. The jury's verdict was for the defendant.

   Adhering to a former case, Randa v. Bear(8) and the just-decided Carson, the Washington Supreme Court held that the trial court properly allowed Mills to testify. The court concluded: "The need for truth outweighs any residual privacy interest stemming from the physician-patient relationship once a patient puts his or her medical condition at issue by filing suit." Once suit is filed, a treating physician may offer "truthful testimony regarding the condition regardless of which party the testimony benefits.

   Absent a privilege, no party is entitled to restrict an opponent's access to a witness, however partial or important to him, by insisting on some notion of allegiance.'"(9)

   MEDICAL AND LEGAL SCOPE

   OF PHYSICIAN-PATIENT PRIVILEGE

1. General Considerations

   Wigmore wrote of the patient-physician privilege:

   (1) In only a few instances, out of the thousands daily occurring, is the fact communicated to a physician confidential in any real sense. Barring the facts of venereal disease and criminal abortion, there is hardly a fact in the categories of medicine in which the patient himself attempts to preserve any real secrecy....

   (2) Even where the disclosure to the physician is actually confidential, it would nonetheless be made though no privilege existed. People would not be deterred from seeking medical help because of the possibility of disclosure in court. If they would, how did they fare in the generations...