Bulsara v. Watkins
387 S.W.3d 165
Ark.2012Background
- Dr. Bulsara sued Dr. Watkins (neurosurgeon) and others for medical malpractice wrongful death regarding stillbirth of Baby Simi; defenses later dismissed; verdict for Watkins in 2006; posttrial motions and a new-trial request based on multiple alleged errors; an appeal followed and earlier appeals were dismissed for lack of final order; a final order denying posttrial relief led to current appeal; court granted review but previously dismissed for lack of final order; on appeal, court ultimately reverses and remands on a specific issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex parte contact violated Rule 35/503 | Bulsara claims Malcom violated ex parte rules with treating physician Seguin | Watkins argues rules protect privacy but counsel may represent parties; no prejudice shown | New trial reversed and remanded for this issue |
| Confidential information and physician-patient privilege | Seguin’s communications shared with Malcom breached privilege | Pre-existing privilege but defense could consult with treating physician | Remand to address prejudice; majority seats disqualification and new trial as remedy (on this issue) |
| Effect of administrator's discharge on appeal | Discharge does not bar pursuit of final order/appeal | Discharge could preclude continuing action | Discharge did not bar pursuing final order or the appeal; appeal jurisdiction maintained |
Key Cases Cited
- Bailey v. Rockafellow, 57 Ark. 216 (1893) (discharge not bar to prosecution; action may continue after administrator's discharge)
- Kraemer v. Patterson, 342 Ark. 481 (2000) (Rule 503/35 ex parte contact forbidden; treating physician may be used as expert with proper safeguards)
- Baylaender v. Method, 594 N.E.2d 1317 (1992) (treating-physician privilege vs. defense counsel; remedy may be exclusion of testimony, not automatic disqualification)
- Harlan v. Lewis, 982 F.2d 1255 (1993) (federal sanction approach to ex parte contact; monetary sanctions considered)
- Courteau v. St. Paul Fire & Marine Ins. Co., 821 S.W.2d 45 (1991) (clarifies physician-patient privilege interplay with insurance-defense counsel)
- Winkler v. Bethell, 362 Ark. 614 (2005) (standard for reviewing motions for new trial; need prejudice shown)
- Jones v. Double “D” Props., Inc., 98 S.W.3d 405 (2003) (standard for abuse of discretion in new-trial rulings)