*1 Apart from the in this I find facts logic
no reason in or law to hold that a
“coerced” confession can never be harm- It
less. cannot be said that there will
never be a case which facts are so over-
whelming against a defendant that the er- beyond
ror is not harmless a reasonable
doubt.
Further, ignore I do not believe we can applying exclusionary
the cost of rule
in this case. The “coercion” this case great. Comparing
was not the costs and
benefits, great the costs are too and the negligible. deciding
benefits Were I independent grounds,
case on state I be- excluding
lieve the cost of the “coerced” great price pay
confession is too meager benefit obtained. See Cameron Lustiger, Exclusionary
&
Rule: A
Analysis,
Russell C. Karen Loften wife;
Duquette, husband Systems,
Scottsdale Memorial Health Inc., Hospi- Scottsdale Memorial d/b/a
tal, Petitioners,
SUPERIOR COURT of the of Ari- State
zona, In and For the COUNTY OF
MARICOPA, Honorable Mo- William T.
roney Stanley and Honorable Z. Good-
farb, thereof, judges Respondent
Judges, LAMBERTY, al.,
Eric et Real
Parties in Interest.
No. 1 88-192. CA-SA Arizona, Appeals
Court 1, Department
Division C.
Aug.
UNDERLYING MEDICAL MALPRACTICE ACTION parties litiga- The real interest this child, Lamberty, tion are a minor Eric Eric) (Lamber- (plaintiff parents or and his who, tys plaintiffs) acting or on Eric’s be- half, malpractice filed a medical action in Maricopa County Superior Court. On 23, 1983, September Eric was delivered at Hospital by Scottsdale Memorial Dr. Rus- Duquette. Duquette sell Dr. was a resi- dent in Scottsdale Memorial Hos- pital’s family practice During clinic. his life, year first by Eric was seen Dr. Duquette periodic baby” for “well visits variety and for a of other medical condi- during tions. Eric was also seen this time physicians. August, numerous other In 1984, diagnosed having Eric was a der- spinal moid tumor in and around his col- required surgery. umn. The tumor In diagnosis connection of the tumor resulting surgery, and the Eric saw at'least physicians. Following four other the sur- gery, Lambertys filed a civil action Mitten, Craig, Fennemore P.C. R.C. against Duquette alleging Dr. that he com- Timothy Berg, Phillip Fargotstein and malpractice by failing mitted medical to: Phoenix, Christopher Staring, peti- P. for (1) properly during treat Eric his birth hos- tioners. (2) diagnose pitalization, and the tumor Hill, Midgley by Hill & James W. Phoe- timely fashion. Scottsdale Memorial Hos- nix, for real in interest. pital was also a named defendant under an Langerman by Amy theory liability. Law Offices G. Lan- agency Phoenix, german, for amicus curiae Ari- In the summer of defense attor- Lawyers Trial zona Ass’n. neys petitioners parte in- conducted ex Palumbo, Harris & P.C. Kevin W. approximately plain- terviews of thirteen of Keenan, Phoenix, for amicus curiae. treating physicians tiff’s without the ex- press plaintiff, parents, consent
OPINION
23, 1987,
his counsel. On June
defense
counsel submitted a list of witnesses and
CONTRERAS, Judge.
liability
at a medical
exhibits
use
review
action,
special
In
we consider the
panel hearing. The list identified as wit-
of whether defense counsel
a medi-
issue
treating physicians
nesses the
who had
may engage
action
in ex
cal
been interviewed in ex
fashion. On
communications,
plaintiff’s
with the
plaintiffs
March
filed a motion to
treating physicians
having ob-
without
testimony
disqualify
and to
counsel.
bar
tained
consent. We conclude
motion, plaintiffs requested
In their
an or-
engage in
defense counsel
(1) barring
treating physicians
der:
Eric’s
parte communica-
such non-consensual ex
testifying
expert
pe-
witnesses for
are limited to the formal dis-
tions but
titioners,
(2) disqualifying
provided by the Arizona
covery methods
representing petitioners.
Procedure.
counsel from
Rules
Civil
July 25, 1988,
Judge
On
trial
adequate post-trial remedy
William would have an
Moroney1 ruled
12-
that A.R.S.
appeal.
on direct
U. Totem Store v. Walk-
[§]
prohibits ex-parte
communication be-
er,
691 P.2d
attorneys
treating
tween Defendants’
(App.1984).
however,
persuaded,
We are
*3
Plaintiff,
physicians of the
unless the Plain- by petitioners’ argument
this case
given
tiff has
express permission
for
presents
signifi-
an issue of state-wide
such a conference.” He then issued an cance.
jurisdictions
We note that other
barring
order
treating physicians
Eric’s
previously
pro-
which have
considered the
testifying
expert
from
as
witnesses for the
priety
parte
split
of ex
interviews are
in
petitioners
they
unless
were first offered
Annot.,
their
resolution
the issue. See
by plaintiffs. Judge
as witnesses
Moroney
714, Discovery: Right
50 ALR 4th
to Ex
not, however, disqualify
did
defense coun-
Injured
Parte
Interview
Party’s
sel from
participation
further
in the case. Treating Physician. We also note the
special
Petitioners seek
action review of
issue,
lack of case law in Arizona on this
as
portion
Judge
Moroney’s order bar-
arguably
well as what is
a conflict between
ring plaintiff’s treating physicians from
opinions
Arizona ethics
which have con-
testifying
expert
witnesses unless first
propriety
sidered the
parte
of ex
interviews
offered
by plaintiffs.
as witnesses
Leave
in varying contexts.2 Since an issue of
to file an
given
amicus curiae brief was
significance
presented,
state-wide
is
and in
Lawyers Association,
the Arizona Trial
and
clarify
order to
and declare the law in
it has done so.
issue,
accept special
Arizona on this
we
jurisdiction.
action
SPECIAL ACTION JURISDICTION
Petitioners contend that this court
WAIVER OF
accept special
should
jurisdiction
action
be
PHYSICIAN-PATIENT PRIVILEGE
they
cause
lack
equally plain, speedy,
adequate remedy
by appeal, and be
by petition-
The briefs filed in this case
presents
cause this case
an issue of state
ers,
interest,
parties
real
in
and amicus
significance
wide
litigants
to the Bar and
in curiae,
Lawyers Association,
Arizona Trial
personal injury cases.
present
arguments
support
numerous
in
Traditionally,
opposition
parte
this court has
to ex
declined to
communica-
accept special
jurisdiction
arguments
action
where the
tions.3 We will address these
special
nature of the
petition
special action,
action involves a dis-
turn.
In their
Instead,
covery dispute.
petitioners
this court has
first contend that
the ex
petitioners
held that
special
in such a
action communications between
treat-
Although
subject
1.
opinions
the order which is the
treating physi-
of this
known and
held
a
special
by Judge Moroney,
"acquired
developed
action was issued
anticipa-
cian are not
petitioners
Therefore,
Judge Stanley
litigation
have also named
Z.
tion of
or for trial.”
respondent
specific
Goodfarb as a
because he has taken
issue addressed in No. 78-23 is not
calendar,
is,
Judge Moroney’s
parameters
over
therefore,
opinion
civil
within the
issued in
88-01,
judge
underly-
Opinions may
trial
No.
and the
be harmon-
ing
However,
parties appear
action.
ized.
to consider
conflict,
Opinions
to be in
and a minute
entry
by Maricopa County Superior
authored
Compare
Opinion
(January
Ethics
No. 88-01
judge
1988) (a
Court
entered in another case
lawyer may
ethically
which has
not
conduct
appended
petitioners’
been
Memorandum of
expert
an ex
interview with an
witness
support
designated by
trial)
Points and Authorities in
of their Peti-
opposing counsel for use at
Special
Opinions
tion
1978) (a
Action also treats the
Opinion
(July
with Ethics
No. 78-23
conflicting.
Opinions
We
lawyer may ethically
therefore cite these
in ex
commu-
in our discussion.
plaintiffs treating physicians
nications with
so
long
deliberately
as he does not
induce a breach
fact,
physician-patient privilege).
special
In
3. The
to this
action have used the
"contacts," "conferences,”
opinions
plaintiffs
these
are not in
A
conflict.
terms
tions,”
"communica-
treating physician
"expert
is not an
witness”
and "interviews” in reference to ex
26(b)(4),
meaning
petitioners’
within the
of Rule
Arizona
communications between
Procedure,
treating physicians.
Rules of Civil
because the facts
and Eric’s
counsel
ing physicians
attorneys
treating
and defense
physicians
testimony
were
when that
improper
physician-patient
liability
because the
was offered at the medical
review
panel hearing.
privilege had been
initially
waived. We
note that the
privilege in
recognized
concept
Arizona has
See statutory.
Arizona is
12-2235
Superior
implied
Bain
waiver.
In
(1982).4
precludes
The Arizona statute
a Court,
714 P.2d
being
examined about
(1986),
Supreme
the Arizona
Court stated
communications made
con-
plaintiff “places
particular
that when a
cerning
any knowledge
his condition or
medical condition at issue
means of a
through personal
the condition obtained
ex-
defense,
claim or affirmative
...
then the
*4
patient
amination of the
without
the con- privilege will be deemed waived with re
Id.
patient.
sent of the
spect
particular
to that
medical condition.”
Bain,
In accordance with
we conclude that
privilege
The holder of the
is the
parents
physician-
Eric’s
have waived the
patient,5
may
privilege.
and he
waive
patient privilege by placing their son’s
(1982).6
See 12-2236
The statute
through
medical condition at issue
initiation
regarding
provides
person
waiver
that a
litigation.
of
who offers himself as a witness and volun
however,
This waiver is not absolute
tarily
privi
testifies about
the otherwise
petitioners’
and we believe
reliance on im
leged
thereby
communications
consents to
plied
in support
propriety
waiver
of
physician.
examination of the
Eric’s
misplaced.
In
communications is
parents have not offered themselves as wit
regard,
agree
this
we
with those cases
nesses,
voluntarily
and have not
testified
physi
which conclude that even where the
concerning their son’s medical condition.
cian-patient privilege
impliedly
has been
Although Mr.
Lamberty
and Mrs.
have
waived,
privilege
the holder of the
waives
deposed by petitioners,
been
their testimo
only
right
object
discovery
his
ny by way
deposition
does not waive the
pertinent medical
information which is
physician-patient privilege because it was
sought through the formal methods of dis
Scott,
v.
given.
not voluntarily
See Buffa
covery
applicable
authorized
Rules
708 P.2d
1333
Mann,
of Civil Procedure. See
v.
Weaver
(App.1985). Therefore,
Lambertys
(D.N.D.1981);
Garner v.
Rather,
ruling merely
such a
limits
gives
communications
holder
methods of contact
privilege
available to the
advantage
litigation
an unfair
attorney to
those methods authorized
inasmuch
given
as the defendant is not
our Rules of Civil Procedure.
same
physician
access to the
witness
is
plaintiff.
Again, however,
Id.
we be-
pointed
The district court also
out that
unique
physi-
lieve that the
nature of the
the formal
acquiring
methods of
evidence
cian-patient relationship justifies a ban on
listed in the Rules of Civil Procedure have
parte
ex
recognize
communications. We
thought
exhaustive,
never been
to be
so as
that such a
plaintiff
ban allows the
to en-
thereby preclude
use of informal meth-
gage in
parte
communications with his
ods such as ex
communications. Id.
physician
prohibits
witnesses while it
agree
gener-
We
with this observation as a
gaining
defendant
equal
access.
However,
proposition.
al
we believe that
However,
inequality
of access to the
the facts
namely,
of this
preclude
witnesses does question
witnesses in
are the
availing
defendant from
himself of the full
treating physicians, along
specific
panoply
discovery
provided by
devices
applicable statute,
12-2235,
re-
the Rules of Civil Procedure.
moves this
application
case from the
general proposition.
Finally,
Lilly
the Eli
court listed series
practical
support
considerations in
of its
The Eli
court
Lilly
further reasoned that
holding in
favor of ex
communica-
potential
influencing
testimony
trial
tions. Specifically, the court noted that ex
every
potential
is inherent in
contact with a
costly
interviews are less
than for-
regardless
witness
of whether that contact
methods;
discovery
mal
communi-
*6
by
is a formal one authorized
the Rules of
typically
cations are
easier to schedule than
Civil Procedure or an informal one such as
depositions;
parte
are
ex
communications
parte
Although
an ex
interview. Id.
it is
greater
produce
candor
spontaneity
on
any discovery
true that
subject to
device is
part
witness;
the
of the
parte
and ex
com-
abuse, realistically, we believe that
the
munications tend to eliminate non-essential
presence
plaintiff’s
of
attorney
the
at an
witnesses in a cost-efficient manner.
Id.
plaintiff’s
interview
treating phy-
between
Although
agree
practical
we
that these
ad-
sicians and
attorneys
substan-
will
vantages may
inherent
be
in an informal
tially
potential
reduce the
for abuse.
procedure
parte interview,
such as an ex
The
in Eli Lilly
district court
also rea-
we do not
that
practical
believe
such
con-
availability
soned
the
of sanctions
efficiency
cerns as cost
of
and ease
sched-
parte
pro-
abuse of
ex
communications
uling
paramount
proper
are of
concern to a
justifies
implementation
cedure
its
in the
resolution of
issue.
medical
context.
Id. We be-
considering
After
lieve, however,
Lilly
Eli
and review-
damage
that not all
of
ing
petitioners
cases
support
cited
in
improper
parte
caused
ex
communica-
parte
their contention that ex
through imposition
tions can be rectified
communica-
permitted,7
per-
tions should be
Specifically,
sanctions.
we
we are not
that the
believe
position
suaded that such a
physician-patient relationship might
ir-
should
be
be
Rather,
in
reparably injured
adopted
parte
as a
Arizona.
we
result of an ex
believe
countervailing arguments
physician
communication between the
which
patient’s
opponent.
shortly
legal
type
justify
This
of we shall address
a ban on
damage
mitigated
parte
can neither be
nor allevi-
such ex
communications.
by legal
ated
sanctions.
finally
Petitioners
contend that Ethics
in
Lilly
Opinion
The district court
Eli
also be-
No. 78-23 issued
the Arizona
physician-
lieved that an invocation of the
State Bar Ethics Committee authorizes ex
patient privilege
preclude
parte
parte
so as
ex
es-
opinion
communications. That
Fass,
(Alaska
Langdon
Through
(Fla.
Champion,
v.
v.
275 sentially attorney may recognizes states that an ethi- Arizona also that there parte in ex cally engage fiduciary relationship phy communications is a between the plaintiffs treating physicians long patient requires physi with so sician and which deliberately good as he does not induce a breach cian “to exercise the utmost faith.” Pittman, How- Hales v. physican-patient privilege. ever, 88-01, 493, (1978). Opinion physican’s Ethics No. a more P.2d fiduci committee, opinion by duty requires recent in ary the same con- that he act the best lawyer may ethically patient protect cludes that a con- interests so as to parte ex expert duct an sanctity interview with an relation while, time, designated by opposing ship complying witness counsel for the same at most, Pe opinions use at At See discovery. trial. these ethics with court authorized Laboratories, Inc., Syntex ex trillo v. arguably suggest propriety that the 581, 591-96, 172, requires judicial Ill.App.3d communications res- 102 Ill.Dec. supra. See fn. 179-82, (1986), olution. cert. 499 N.E.2d 959-62
denied,
483 U.S.
107 S.Ct.
agree
L.Ed.2d 738
We
with
DISCUSSION: OPPOSING EX PARTE
when,
Petrillo
limiting physician
court
in
COMMUNICATIONS
disclosure to court authorized methods of
Having
rejected
discussed and
the con
discovery, it stated:
by petitioners
support
tentions raised
in
patient’s
Discussion of the
confidences
ex
communications,
proceed
we
circumstances,
under
other
such as
overriding public
address what we feel are
conference,
the could be incon-
which,
policy considerations
when con
fiduciary
sistent with the duties of a
conjunction
statutory
sidered
our
would,
effect,
physician
physician-patient privilege, justify
prohi
contrary
conduct which
be
to a fidu-
bition on communications between
and,
ciary’s obligation
good
faith
treating physicians and de
addition, may
potentially
harmful
attorneys.
fense
Our initial consideration
the interests of the
in that
unique
physician-
involves the
nature of the
might
disclose intimate facts of
patient relationship.
is,
relationship
That
*7
patient
the
are
which
unrelated and irrel-
foremost,
first and
a confidential one. See
physical
evant to the mental or
condition
Udall,
Arizona Law Evidence §
93,
M.
placed at issue in the lawsuit. Conse-
(1960). Thus,
legislature
at 145
per
our
parte
the ex
quently,
conference involves
protect
ceived a need to
the confidential
conduct which could
violative
the
be
nature of the relationship by enactment of
would,
fiduciary
duties of a
and
there-
statutory
a
physician-patient privilege. See
fore,
contrary
public policy
the
to
(1982).
purpose
A.R.S.
12-2235
§
favoring
fiduciary
phy-
the
nature of the
the
privilege is to ensure
sician-patient relationship.
patient
that “the
will receive the best medi
Id. at
181-82,
dan is reject request free to such a against participation parte in ex inter- thereby force the defense attorney to uti- views. lize formal methods of discovery, we be- Second, physician’s a disclosure of confi- option lieve that this acceptably does not dential during parte information in- ex pressure reduce the physician. on the A may terview physician subject to physician may understanding lack an charges professional misconduct. legal distinction between an informal meth- 32-1401.12(b) unprofes- defines discovery od of parte such as an ex inter- sional conduct profession for the medical to view, and formal discovery methods of “[ijntentional include betrayal profes- of a depositions such as interrogaties, and sional secret intentional violation of a may compelled therefore participate feel privileged except communication as either parte the ex interview. We also note may required act otherwise be law.” Arizona, that in a substantial number of 13-1401.12(b) Thus, (Supp.1988). A.R.S. § physicians single are insured a “doctor physician’s voluntary participation Realistically, owned” insurer. this factor parte may subject interview him or could impact physician’s have an on the professional her to discipline as well as words, decision. In other physician potential liability. tort might
witness compelled participate feel Third, case, present at least in the parte in the ex interview because the insur- physician’s participation in a non-consensu- er defending the medical defen- al ex interview would not inbe ac- may dant also insure physician witness. cord with the voluntary Guidelines for Co- An additional factor that must be taken operation Physicians Between and Attor- into consideration is that physician a who neys Maricopa County adopted jointly by allows himself to be interviewed ex Maricopa County Bar Association and embarks, perhaps unknowingly, on a Maricopa County Society. Medical Sec- course may pro- IV(B) which involve breach of tion of the Guidelines specifically potential fessional ethics and liability. lawyer states that if a representing the First, participation in an defendant wishes interview to discuss the case awith treating physician, he physician’s constitute a breach of the should either professional physician signed with a release of Hippoc- code of ethics.8 The medical information ratic authorization or sub- acknowledges physician’s Oath9 poena deposition. In this obligation keep in trust confi- compliance there was no with Guide- Further, Principle dences. IV of the Amer- IV(B).10 line ican Principles Medical Association’s requires physicians Medical Ethics to “safe- An additional supporting consideration guard patient confidences within the con- ban on ex interviews involves the *8 Finally, straints of the law.” Section 5.05 practical difficulty in determining scope Opinions the Current of the Judicial physician-patient of the waiver of the privi- Council of the American Medical Associa- lege. scope The of the waiver is often in tion states that information disclosed dispute, “[t]he and participation absent court physician during the course of the discovery process, resolution of that relationship physician between dispute is left to the defense attorney and greatest is possible confidential to the de- physician witness. We believe that this gree.” appear It would therefore places that a scenario both the attorney physician’s obligations preponderate ethical physician and the in an position. untenable profession 8. Hippocratic The code of ethics for the medical Oath states: 1) comprised prongs: Hippocratic "Whatever, is of three my profession- in connection with Oath; 2) it, practice the American Medical Association’s al or or not in connection with I see hear, Ethics; men, 3) Principles ought of Medical in the life of which the Current not to abroad, spoken divulge, be oning Opinions I will not as reck- of the Judicial Counsel of the Ameri- kept that all such should be secret.” Syntex can Medical Association. See Petrillo v. Laboratories, Inc., 581, 586, Ill.App.3d 148 102 acknowledge 10. We that the Guidelines do not Ill.Dec. N.E.2d 957 have the effect of a rule. Supreme As the Iowa Court stated in APPROPRIATENESS OF SANCTIONS Partnership Roosevelt Hotel Ltd. v. Swee- We imposed now consider the sanction (1986): ney, 394 N.W.2d by the trial judge’s court. The trial order Placing the burden determining rele- plaintiff’s treating physicians barred vancy attorney, anon who does not know testifying experts petition- on behalf of the nature of the confidential disclosure they ers unless were first offered as wit- elicited, risky. Asking about be is by plaintiffs. nesses today’s Prior to deci- physician, law, untrained in the to as- sion, the law on this issue in the State greater gamble sume this burden is a Arizona was unsettled. There was no de- physician. and is unfair to the We be- finitive decision and there was considerable lieve this determination is better made in argument room for on both sides of the setting in which party counsel for each situation, issue. Given this we believe is and the court is available to it an was abuse of discretion for the trial disputes. settle summarily impose court to the sanction of We believe that any dispute resolution of preclusion testimony. scope over the physi- the waiver of the We remand this matter to the trial court cian-patient privilege should made in an with directions to vacate its ordered sanc- opposed adversarial to an ex set- plaintiffs tion. If the believe that the de- ting. fendants, through interviews, the ex secured they information that could not CONCLUSION have discovery, they obtained formal Upon review of the numerous coun may request evidentiary hearing. If the tervailing public policy considerations trial court finds that the defendants did presented on the issue we information, secure such it fashion an conclude that advantages gained to be appropriate remedy preclude its use or in the parte procedure informal ex are exploitation. clearly outweighed by dangers Remanded. procedure presents physician-patient to the relationship as pressures well as
procedure brings KLEINSCHMIDT, Judge, to bear on the concurs. and attorney participants. agree We BROOKS, Presiding Judge, specially wholeheartedly Supreme with the Court of concurring: Washington when it stated that “[t]he unique nature disagree rela I do majority’s with the tionship dangers and the analysis which ex balancing policy various pose interviews justify the direct involve brought play considerations that are into ment of counsel in contact between when informal methods of discovery are defense counsel and a physi pursued in a medical action. cian.” Loudon Mhyre, However, 110 Wash.2d I inquiry would end the and dis- 138, 142(1988). Accordingly, pose special of this action without announc- upon provisions based ing fiat, judicial a rule leaving that public 12-2235 and policy, we hold rule-making power that matter within the of our *9 Const, defense counsel in a supreme medical court. See Ariz. art. may 5(5). action in non-consensual ex That court would then have the § plaintiff's input contemplated by communications with benefit of the treating physicians. 12-110.1 provides:
1. A.R.S. § 12-110 or advise the court on matter dealt with bar, proposed or to be dealt with in the rules. representative group A. The state or a bar, Any pri- B. member advisory selected of the state bar or a shall act as an object voluntarily upon writing board and shall vate citizen either to a rule or request majority judges part may request changes. of a thereof and court, with, supreme objections consult recommend to court shall consider the and re- n hand, it is sufficient to m tne case at no Arizona statute or rule
hold that since
currently prohibits defense counsel conferences with the
engaging treating physicians, no sanctions imposed petitioners’ on
should have been proceedings. stage of the
counsel at this
However, majority in the pointed out appear that
opinion, should it later disclosure resulted
parte discussions not have been that could
of information discovery, appro- through formal
obtained could be considered.
priate sanctions Arizona, Appellant,
STATE GIVENS, Appellee.
Prentice
No. 1 88-209. CA-CR Arizona, Appeals of
Court 1, Department B.
Division
Aug. County Romley, Maricopa M.
Richard Gerhardt, Deputy County Allen Atty. by H. Phoenix, appellant. Atty., Wisdom, McNulty by Mary K. Logan & Phoenix, Wisdom, appellee. OPINION EUBANK, Judge. appeal in this is whether raised
The issue a mistrial declaration of sponte the sua defendant’s both the the trial court over *10 reprosecu- objections would bar and state’s jeopardy on double of defendant tion at its discretion. only act thereon information quests as advice and