*1
John Ethel Franklin PEARCE and
Pearce, wife, Plaintiffs- husband
Appellants-Cross Respondents, OLLIE, M.D.;
Steven and John and Jane V, Through
Does I True Names Whose Unknown, Defendants-Respon
are
dents. Cascade, Idaho,
Valley County Hospital,
Defendant-Respondent, Cross
Appellant, Schlender, Hailey, plaintiffs- E. Lee Moser, M.D., John Defendant. appellants-cross respondents. No. 17744. Quane, Smith, Hull, Boise, & Howard Supreme Court of Idaho. defendant-respondent Ollie. Elizabeth G. term, January Boise 1991. argued. Roper Feb. 1992. Troxell, Boise, Hawley, Hawley, Ennis & defendant-respondent, appellant cross Valley County Hosp. Joseph Langfield P. argued.
BAKES, Chief Justice. John Pearce suffered a subarachnoid ce- Cascade, (stroke) hemorrhage Ida- rebral ho, January his of 1984. Treatment for Valley condition was administered County Hospital and Dr. John Moser and Ollie, Cascade, Idaho, physi- Dr. Steven malpractice cians. This medical action arises from that treatment. consultation, care and treat- After initial passage hospital, ment at the and the hours, approximately Pearce was trans- in Boise at Alphonsus Hospital ferred to St. There he was the direction Dr. Ollie. Cindrich, treated Dr. Patrick a neuro- Wilson, a neurol- surgeon, and Dr. Richard ogist. severe and Mr. Pearce sustained impair- permanent physical and mental hem- ments from the subarachnoid cerebral orrhage. John Pearce and October of against Dr.
wife Ethel initiated this action Moser, Ollie, Valley County Hospi- alleged Valley complaint tal. The Hospital properly failed to treat County Pearce, treating physicians, Mr. *2 540 hospital granted the motion and Ollie, provide ade- court did not
Drs. Moser and
consultation,
Valley
and that
from the action.
neurological
dismissed
quate
was
too late to St.
the di-
Hospital cross-appeals
transferred
from
County
Mr. Pearce was
contend that
plaintiffs
favor, asserting
The
Alphonsus.
in
as
rected verdict
its
and treatment
diagnosis
with earlier
other defenses which
position its
fall-back
no
suffered little or
Pearce would have
ruling
in
on the
rejected
court
the district
impairment.
conclude
for directed verdict. We
motion
appeal in this case should
that the Pearces’
trial,
Before the case went
Thus,
neеd not reach the
dismissed.
we
depositions that
taking
tiffs learned while
parties.
by
other issues raised
both
engaged
counsel had
and Dr. Wil-
Dr. Cindrich
interviews with
jury's
apparent from the
readily
As is
knowledge or consent of
son without
A,
Appendix
verdict,
attached as
which is
conceded to hav-
Both doctors
Mr. Pearce.
total dam-
determined Pearce’s
jury
testify
counsel to
ing agreed with defense
by
proximately caused
ages, “which were
the defen-
expert
on behalf of
as
witnesses
defendant(s),” to be
failure of the
seek-
filed a motion
The
dants.
$150,000.
judgment
entered
The trial court
the defendants
precluding
order
Dr. Moser
against
because
on that verdict
calling
and Dr. Wilson
from
Dr. Cindrich
jury
whom the
was the
defendant
he
witnesses,
trial court denied.
which the
total amount of
negligent. The
found to be
Boise,
jury
tried to a
The case was
by
plaintiff,
as found
damages suffered
jury
returned
March
Moser and
paid by Dr.
jury,
only Dr. Moser was
finding that
verdict
Accordingly,
plaintiff.
accepted
Mr. Pearce.
negligence
treating
guilty of
proceedings
no
for further
there is
basis
negligence.
was absolved
Dr. Ollie
appeal.
for an
and no basis
judgment upon the
court entered
The trial
Budzianowski,
Idaho
Walker
Dr. Moser was
case
and the
verdict
(Where
(1982)
defendant
646 P.2d
$150,000, the
payment of
concluded
to tender full
offered
personal injury action
jury found
damages which the
amount of
costs, plus inter-
damages and
amount
had sustained.
that Mr. Pearce
by plain-
est,
questions raised
plaintiff,
Ford,
moot); Bob Rice
appeal were
dis-
tiff on
appealed from the
Pearces have
P.2d 37
Idaho
Donnelly, 98
Inc. v.
exclude the testimo-
refusal to
trict court’s
Crouse,
Ida-
Wilson,
(1977);
Corp. v.
Radioear
Drs.
ny of
Cindrich
(1976).
Dr. Moser’s liable, surplusage, mere *6 the “s” was any damages Dr. as to find Ollie liable special did not directive of the verdict the whatsoever, it follows that the from which doubting jurors.2 the There is no so advise $150,000 only apply to damage award could words, “[wjhat encountering the are that in Therefore, liability the of Dr. Dr. Moser. by the damages suffered the total susceptible being to tried a second Ollie is by caused proximately tiffs were which prevail do not on plaintiffs time. If the defendant(s)?” has elected to majority trial, is home liability in a second Dr. Ollie encasing the parenthesis symbols strike the free. letter “s.” majority’s willingness to assume damages rendered The total were $150,000 “the total award was for that the monetary is no only Dr. Moser. There by plaintiffs ... damages suffered Ollie, paid he has no against Dr. award defendant(s),” is trouble- by caused the ... trial. Accord- damages a result of the as only to whom defendants some. preventing ingly, there is no obstacle and Dr. Dr. Moser question referred were alleged trying Dr. Ollie’s plaintiffs from ánd Ethel plaintiffs, Frank Both Ollie. to will be as negligence in a new trial which Pearce, damages. insuffi- With claimed attorneys Dr. only, him and where Ollie’s court, trial it can- guidance from the cient utilizing precluded properly be not will jury did or did not be said whether from as witnesses treating physicians form as Pearce’s in the verdict question read that intervention, exonerat- was district court absent require Brandéis acumen not 2. It does await other than to out of the case special ed and verdict was drafted that the understand verdict, incidentally that, judgment on thought at the time the in mind with the his de- any incurred in feеs jury, collect costs and were two to the there was submitted jurors reached defendants, that when negligent. fense. It follows alleged to have been both damages defendants, total question “What are the no. only deci- being the first two There proximate- plaintiffs by which were suffered jury to answer “no” was sion made defendant(s)?” the ly the failure absolving of caused question Dr. Ollie inquiry no. of any $150,000 application to time, no although had award of negligence. At that causative Ollie, Dr. Moser. realize, liability than that attributed other probably not so jurors did plaintiffs’ treating physi- majority goes “hands-off” of Where the the defense.3 clearly plaintiffs’ inimical to the mind the fact cians was astray putting is in out of erroneous, there Because it was the defendant doctors were sued lawsuit. defendants, jury trial. Had the ver- and not as a two- must be a second individual team, partnership, nor Drs. Moser and Ollie man nor as dict absolved both joined incorporated capacity. liability, Plaintiffs this Court would have been trial, purposes proposition It could put grant them for a new trial. hard not or other defen- prejudicial, highly preju- which either of the doctors other than challenged, did not. dants could have improper, for the dicial and wrote, ‘‘Here, Judge himself McKee testimony deprived have been defendants, asserting plaintiff sued three treating physicians—accomplished their separate and liabil- negligence theories bring- stealthy procedure by the represented ity against each. Each was encampment. As into the defense both by separate (emphasis counsel.” R. 509 elsewhere, there was some financial stated added). liability differed as to Theories doctors, nothing gain pales for the each doctor. compared to the destructive effect on when plaintiffs’ knowing There is no how case. presented clear cut This Court is with a paid to Dr. Wilson and Dr. Cind- much was opportunity to inhibit a defense counsel rich, but it is a matter of record that course of conduct which has been con- $2832.31, McKee awarded Wilson overwhelming majority demned an $3400.00, Dr. Cindrich as witness fees. On jurisdictions the courts in all which have scales, plain- the other end of the balance foregoing addressed the the issue. The nothing except tiff Pearce ended with Ethel statement is made without hesitation physically injured wholly shell of her authority, after an extensive research of disabled husband. which endeavor consumed weeks rather days, opinion than and which resulted suggestion, to the The aforementioned which, joined, prac- if would have halted respondents effect could have legal community tice which had not dismissal, apparently moved for had consid- previously brought been to the Court’s at- appeal, in a time it erable because short opinion As tention. a result of the for the concurrences, and the consensus had three puts stamp approval Court which presumably appeal to dismiss the *7 will, practice Topsy, grow, that like opinion lacking an a ratio decidendi. Pre- grow, grow, denigration of the sumably preferred opinion an this was over respectability practice of the of law in Ida- denouncing the actions of defense counsel ho, far more than did of the advent adver- making contact a nonconsensual with tising. plaintiff’s treating physicians, and worse review,
By any Judge yet, retaining expert standard of their services as wit- ruling Today McKee’s released trial and bar are which defense nesses. the bench statutory requirement judgment counsel from the which favored with Court’s justice readily accept ruling would more the Moser was in- 3. This McKee’s that Dr. majority’s opinion strength if it assessed the testify taking pretrial competent at the of his to pil- the defendants’ case in the absence of the deposition. defense of Dr. Ollie was based However, testimony. majority fered witness the entirely testimony Dr. on the of Dr. Wilson and attempt not to assert that the does Cindrich, treating phy- Frank Pearce’s who were against not havе won their case both Dr. would extensively, physicians testified as sicians. Both and Dr. Moser even if the defendants had Ollie by going Quane’s is to the record. Mr. disclosed Indeed, plaintiffs' physicians. stolen the not eighty- of Dr. Cindrich filled direct examination they proposition could not assert such a pages two of direct examination. His redirect confidence; any degree of without Dr. Cindrich pages. of Dr. Cindrich was four His examina- Wilson, the sole defense witness would and Dr. encompassed ninety-six pages Wilson tion of Dr. Nielsen, psychiatrist, been Dr. Cantril plus twenty-two pages of redirect. an additional testimony largely pertained to the mental whose defendants, Gjording, Mr. also for encom- the competency testimony of Dr. Moser. That was examination, passed pages four and eleven application to the issue of Dr. Moser’s not for negligence, pages of examination of defendants. asking but on defense motion majority. judgment only effectuates that consensus the learned of the default on open Pandora’s unless the locating box is until and judgment during lien a title legislature intervenes. property. petitioned search of his real He it set to have aside. order to sell appears majority Not one word the meantime, property deposited the Crouse opinion by the at- majority which even court, pursuant funds with the to I.C. tempts justify to the untoward and Court’s 10-1115, in satisfy judgment to order the precipitous taking § conduct itself the unto cloud and thus remove the on his title. authority sponte appeal to sua dismiss the by doing contended request in- Plaintiff Radioear pausing without or allow Furthermore, so, making Crouse was of reme- volved counsel to be heard. election support attacking cases the so majority precluded the cited dies and was from not proposition judgment. of that do lend credence the This held distinguishable the it. Each one is depositing of the the Crouse’s funds with present set of facts. case now before clerk of court was not inconsistent with an vеry unlike us much the scenario right move the assertion the to vacate Budzianowski, 103 Idaho Walker judgment. P.2d issue where the us, Radioear, case as in it In the before appeal genuinely mooted the similarly not inconsistent the Pearces actions.4 defendant’s accept money judgment the from defen- upon by In the the second case relied Moser, jury Dr. found clear- dant whom Ford, majority, Donnelly, Bob Rice Inc. v. ly negligent, pursu- at the same time while (1977),judgment Idaho P.2d 37 objectionable a new trial free of Donnelly, against had been at trial entered in retaining tactics defendant, Ford. in favor Bob Rice treating physicians expert as wit- Pearces’ Subsequently, Donnelly deposited with Moser, proceedings As to nesses. Dr. judgment amount district court the do complete; and Ethel Pearce are Frank authorizing its release to Bob as well They simply try dispute that. wish later Rice Ford. This Court dismissed a against case Dr. Ollie without defense their appeal by Donnelly, holding that since he treating use Pearce’s counsel’s of Frank fully judgment against had satisfied Dr. Ol- physicians’ testimony on behalf of is rela- him the was moot. The law lie. Donnelly tively clear that when defendant judgment affirmatively satisfied ready that the response A notion him, proceedings in the all further has to appeal be dismissed because contrary, lawsuit ended. To when $150,000 plaintiffs accepted accepted Pearces Moser’s satisfaction Pearce, is no one jury awarded Frank nothing as to judgment, they admitted might out- possibly can know what it how related to Ollie. solely trial come if there to be new were *8 Ollie, ques- A against Dr. no one else. and Crouse, Finally, Corp. Radioear jury returned Had the tion to be asked is: a P.2d 546 involved Idaho liability as to both Dr. Ollie of no a verdict allegedly by for a owed Crouse. suit debt plaintiffs be enti- Moser, the and Dr. would appearance judgment and made no Crouse grant of a appeal pursuit of to him he failed tled because was entered de- and at the defendants the Crouse new trial which appear to defend case. to judgment to Walker, be entered sought damages an amended from ed and 4. In the personal injuries into the suffered had tendered for that Budzianowski Budzianowski when Budzianowski’s stationary reflect Walker’s vehicle struck the Since $1023.30. court entire district the dam- in the rear. Walker's vehicle by trial appealed Walker was the issue $1023.30, appor- jury ages the were because comparative negligence instructions on court’s plaintiff and negligence the the between tioned jury supported find- the evidence and whether defendant, resulting judgment in favor of the truly negligent, was it Walker was 49% that by the court was Walker entered trial pay the upon offer to mooted Budzianowski’s However, entry plus of after costs. parties $521.88 by requested Walker. amount entire stipulated it be vacat- judgment, the of using from well as her husband’s claim for loss fense counsel would be barred services, care, consortium, as comfort and Dr. Wilson and Dr. Cindrich witnesses trial, Yes, they companionship. The case to and for the defense? Answer: would went precluded, damages mem- Mrs. Mc- provided jury be so two awarded my $196,000, of the Court share view that this of and to Mr. bers Donald in the sum should to banish such con- of endeavor his loss consortium McDonald for trial would be $35,000. upheld duct. Otherwise a second sum of Both awards were futile. appeal opinion by this on in a unanimous Court. prejudice is done readily apparent any attorney, trial even previously, a similar case year Just one First, plaintiffs experience. one of limited presented was to us Runcorn v. Shearer deprived calling of both Dr. were Wilson Co., P.2d 324 107 Idaho Lumber and Dr. Cindrich as witnesses because both (1984). damages Runcorn’s were set Mr. expert had been retained as defense wit- $825,000. by the the sum of For jury at plaintiffs’ nesses. If the so were claim, of Mrs. Runcorn’s loss consortium calling foolish as to risk Dr. Cindrich or Dr. damages sum of jury in the awarded presentation testify Wilson to $100,000, was judgment that amount plaintiffs’ counsel would have defense Schilling, by Judge entered was not who day Any had a field on cross-examination. Company to by convinced Shearer Lumber leading questions manner and all appeal reduce On to this either amount. suggestive questions day’s be would affirmed, ex- judgments Court both were spoon by fed to the witnesses bill-of-fare cept for our unanimous conclusion that is defense counsel. Cross-examination district reduce loss of con- court should open much like season. The Pearces are percent sortium ten to account award entitled to a new trial wherein Wilson comparative negligence for Mr. Runcorn’s precluded and Dr. Cindrich would be percent. Mr. Run- jury set at ten testifying experts as for the defense. The judgment corn’s also was directed trial which we not a trial. review was fair $22,031.99, reduced sum of because by the ruling Because of McKee’s the ensu- he had received that amount worker’s ing trial was tainted even before it com- compensation benefits. menced coun- maneuvers sum, is indeed loss consortium retaining sel in and Dr. Wilson Cindrich action, viable and a claim which cause expert witnesses for defendants. dependent amount awarded Additionally, damage jury award to If injured person. evidence on that zero, clearly Ethel Pearce an unac- claim, Mrs. then supported issue Pearce’s ceptable Paragraph state of affairs. XII re- jury improperly and without basis alleged complaint the Pearces’ loss unacceptable turned on that verdict Although consortium. there be some testimony on direct and redi- claim. Her scoff, loss long of consortium has been who (a pages total of rect examination Idaho, recognized action cause of substantia] transcript) clearly illustrated claim the total absence of an award her damage loss of consortium and enough is reason for the Pearces considerably more than nom- entitlement to again issue second trial wherein Yet, the “zero” damages. jury inal said a jury. submitted acceрted It the verdict. court *9 I sign to am has would be a welcome know just years the last ten perused testi- has her only such it. The more not one who had two cases before purport mony. complaint did not Safeway one was McDonald v. recent necessary to (1985). particulars, nor was it Stores, P.2d 416 list 109 Idaho complaint that such physically injured do so. The stated McDonald was the Mrs. trial, Ethel at and joint complaint would be established spouse, and McDonalds’ is no promise. There general spe- Pearce fulfilled that a claim for her and contained zero stand $300,000, cannot damages in amount of as doubt that a verdict cial this case. The Pearces are diagnosis entitled to a tend that with earlier and treat- new trial. ment Pearce would have suffered little or impairment. no
Having my obligation fulfilled as as- signed opinion author to write an for the Boise, jury The case was tried to a and Court, examining undertaken after 24, 1988, on March jury returned a plaintiffs’ district court’s denial of motion finding verdict Dr. Moser committed mal- order, for an in limine it is now each practice. Judgment upon the verdict was justice to decide whether to breathe life against entered and the case Dr. Moser opinion by into this concurring, or not do- by payment judgment. was settled so, not, if endorsing approval and thus jury’s verdict absolved Dr. Ollie turning McKee’s decision negligence. purloin any plaintiff’s counsel free to treat- trial, During and after the Pearces ing physicians bargain and in the implicitly chief, Valley had rested their case in Coun- 9-203(4) relegating scrap I.C. § ty Hospital moved for a directed verdict. now, heap. time, If not then at some later granted The district court the motion and perhaps enlightened a more Court will see Hospital was dismissed from the action. opinion put fit to dust off the and it to the appealed The Pearces have from the final good use for which it was intended. Ac- Ollie, judgment granted of dismissal to Dr. follows, cordingly it than other that those denying post- and also from the order their parts majority my wherein the and view judgment for a motion new trial view coincide are omitted5: Hospital Valley County and Dr. Ollie. Hospital cross-appeals from the directed PROPOSED, PART IV. BUT RE- favor, asserting verdict its as a fall-back JECTED, MAJORITY OPIN- position its other defenses which the dis- BISTLINE, ION of J. rejected ruling trict court on the motion John Pearce suffered a subarachnoid ce- for directed verdict. Cascade, hemorrhage rebral Idaho in January malpractice of 1984. This medical A. EX PARTE INTER- DEFENDANTS’ action arises from the treatment adminis- TREAT- VIEWS WITH PLAINTIFF’S Valley County Hospital, tered ING PHYSICIANS Ollie, Dr. John Moser and Dr. Steven resi- consultation, physicians. impression juris- dent After initial An issue of first hospital, testimony care and treatment at the and the of Dr. diction whether hours, passage approximately Pearce have been Cindrich and Dr. Wilson should Hospital Alphonsus transferred to St. precluded of defense counsel’s because in Boise at the direction of Dr. Ollie. There having engaged them in non-consensual ex Cindrich, by Dr. he was treated Patrick This information was not interviews. Wilson, Richard neurosurgeon, and Dr. depositions being taken. learned until were neurologist. severe Mr. Pearce sustained having agreed to Both doctors conceded to impair- permanent physical and mental testify expert on behalf of witnesses hem- ments from the subarachnoid cerebral denied defendants. The district court orrhage. precluding plaintiffs’ motion for an order utilizing Dr. Cindrich defendants from Pearce and his In October of John witnesses, doing so and Dr. Wilson as against Dr. wife Ethel initiated this action decision: a written memorandum means of Moser, Ollie, County Hospi- Valley evaluating the In the course of complaint alleged: prop- failure to tal. The Cascade, hospitalized tiff he was while by Valley County; erly treat Mr. Pearce via tele- consulted the defendant Ollie neurological consultation was Wilson, a neurol- phone with Dr. Richard treating physi- properly by the obtained con- Subsequently, and ogist in Boise. cians; that Mr. Pearce was transferred Wilsоn, opinion con- sistent with Alphonsus. Plaintiffs too late St. *10 II, III, majority IV. my proposed opinion are Parts and 5. Deleted from
549 authority by the Al- I find the cited plaintiff transferred to St. Illinois Ill. Boise, McCray, 157 phonsus plaintiff, he was Karsten v. R.M.C. where Cindrich, Ill.Dec. 509 N.E.2d by App.3d a 109 operated upon Dr. Patrick (1987), El-Deiry, v. 160 1376 and Yates neurosurgeon. Ill.Dec. 513 Ill.App.3d 112 mal- Plaintiff now filed the instant has unpersuasive. 519 to be N.E.2d practice action two a the Illinois court that The conclusion of Ollie, Cascade, Drs. cians Moser and through informal party not obtain Valley County Appar- Hospital. and through means what would be available attorneys ently, during preparation, trial remedy discovery, and that the formal for the defendants discussed the case transgression of such is the exclusion and Dr. with both Dr. Wilson Cindrich. tainted, supportable. so is not evidence early discovery, In listed defendants experts both of these doctors as defense Instead, persuaded by I views am pertaining on issues to substantive jurisdictions to the expressed other plaintiff by treatment the de- afforded to parties that all have free access effect upon fendants local and relevant privileged, such all evidence not however date, plain- At a standard of care. later Brown, acquired. may be Lazorick v. deposed tiffs counsel both Dr. Wilson NJ.Super. 444, (1984); A.2d 480 223 195 depo- Following Cindrich. these v. Drobny, TransWorld Investments sitions, learning apparently upon (Alaska 1976); P.2d 1148 Stufflebam thereby prepared that these doctors were (Mo.App. Appelquist, S.W.2d 882 testify adversely plaintiff's position, to to 1985). plaintiff filed the instant to motion bar opinions by The ethical cited testimony. their is point. not in This not a case tiff are upon Plaintiff his motion bases have a where defense counsel invaded grounds that Drs. Wilson and Cindrich infringed ex- privileged upon area or subject fiduciary duty to the are to by previously retained pert ought plaintiff, they per- and that not be litigation purposes. testify adversely Plain- mitted to him. ruling. my I therefore decline revisit tiff further contends that defense сoun- motion to exclude the testimo- Plaintiff’s improperly discussing acted sel ny Drs. Cindrich will re- Wilson and parte, case with these doctors shall main denied. This memorandum retaining ex- then them as defense constitute the order court. perts____ impres- Because this is an issue first pos- opinions The information and Idaho, very important also a sion sessed Drs. are Wilson and Cindrich issue, only to necessarily must look not we 503(d) privileged. excepts I.R.E. by the holdings in the cases examined six any mat- physician-patient privilege court, jurisdictions other district placed patient. ters in issue passed upon that issue. (Even) I privilege, persuaded am absent naturally turn engaging in that exercise we Lilly of Doe & that the rationale v. Eli states, neighboring then first to our Co., (D.D.C.1983) F.R.D. states, way and work our western other better reasoned view: eastward. anything party litigation no has ... 1988, the years ago, in June right three
resembling proprietary Just Washington Supreme Court was confront- privilege witness’s evidence. Absent issue and reached oppo- the exact same party no entitled to restrict an ed with justices. nine of witness, signed by all to a however decision nent’s access him, 110 Wash.2d Mhyre, insist- Loudon v. partial important See (1988).6 Because Wash- allegiance. P.2d 138 ing upon notion of some brought by wrongful death action underlying This is a facts in Loudon were: 6. The Loudon, individually personal and as Robert *11 550
ington
parte contact. See Alston v. Greater
prior
court’s
ruling on that
issue
1964,
S.E. Comm’ty Hosp.,
Appelquist, (Mo.App.
S.W.2d 882
(footnote omitted).7
1985); Stempler
Speidell,
100 N.J.
368,
(1985).
551
integ-
the
364,
1376,
question
mean to
at
We do not
Dec.
509 N.E.2d at
and Yates
sug-
lawyers or
rity of
and
to
105,
doctors
112
N.E.2d
El-Deiry,
v.
Ill.Dec. at
513
discovery in
gest
must control
that we
519,
Judge
at
McKee
which latter
two
ethical conduct.
order
assure their
to
by
examined
unpersuasive.
found
Cases
concerned, however, with the
We are
Supreme
includ
Washington
Court also
determining
a
difficulty of
whether
per
ed additional citations favorable to
particular piece of information is rele-
McKee,
re
namely the
suasions of
litigated.
being
Plac-
vant
the claim
Langdon
745
Champion,
cent cases of
v.
determining
relevan-
burden
¶.
(Alaska 1987);
Bloods
P.2d 1371
Green
know
cy
attorney,
on an
does not
who
worth,
(Del.Super.Ct.1985);
A.2d
501
1257
disclo-
the nature of
confidential
368,
100
495
Stempler
Speidel,
and
v.
N.J.
elicited,
risky.
is
to be
sure about
(1985). Basing
A.2d
its decision on all
857
Asking
in the
physician,
untrained
in its
pro
con cases cited
thirteen of
and
law,
greater
this
is a
to assume
burden
cases,
opinion, plus
Wright
five
v.
other
physician.
gamble and is unfair to
192,
Hosp.,
691
Group
103 Wash.2d
Health
is
this determination
better
We believe
(1984);
Sasser, 74
Phipps
P.2d 564
v.
setting
made in a
in which counsel
439,
(1968);
445
Wash.2d
P.2d 624
Lockett
present
is
party
each
is
and
court
654,
Goodill,
P.2d 589
v.
71 Wash.2d
430
disputes.
to settle
available
415,
(1967);
Bear,
v.
50
Randa
Wash.2d
Partnership
v.
Roosevelt Hotel Ltd.
Driscoll,
(1957);
312 P.2d
v.
640
Smith
Sweeney,
N.W.2d at 357.
394
(1917);
94 Wash.
or in promulgated sion has Idaho been as a order, entry On Jaap, of that Julie 503(d)(3), evidence, rule оf I.R.E. which order, reversing the purpose applied of that reads: the Supreme to Montana Court a for writ supervisory of control and the Montana Condition an of claim or element defense. Supreme jurisdiction assumed to re- There is no under this rule as to privilege view propriety of the order. The court an issue a relevant to communication noted that the district court’s order on its physical, emotional mental or condi- inoffensive, adding, however, face was that any proceeding of the in in tion parties acknowledge all that the intent upon he the condition as which relies an permit private the order “was interviews or, element his claim or defense after Jaap’s between defense counsel and Julie death, patient’s any proceeding therapists.” Jaap, 623 P.2d any party upon relies the condition which at 1390. as an his claim or defense. element of had in effect a Montana then waiver of 503(d)(3). that I.R.E. We also observe both rule, 35(b)(2), privilege Rule which in full discovery jurisdictions promulgated provides: 26(a) rules and Rule of Montana that (1) Privilege.—Either by re- Waiver of exactly Rules of Civil Procedure is worded obtaining report questing and 26(a) same as of the Idaho Rules Rule herein, provided examination ordered as Procedure, than that the Ida- of Civil other taking deposition or exam- by additional sen- ho version concludes with an (2) iner, commencing an or or action tence, orders “Unless the Court otherwise places asserting defense which in issue rule, (c) this the fre- under subdivision physical or of a mental condition quency methods is not of use of these action, party examined party party or to the action limited.”9 waives However, sug- is no The reader that there June 1988. even ab- 9. is cautioned issued until gestion Loudon, of the Rule sub- the remainder respectable sent there was abundant jurisdictions two as sections are as alike in the may brought authority not have which been 26(a). reason at time is Rule There is no
the court’s attеntion. making academic excursion. said, Montana court then as to the of the Montana Rule of Civil set Procedure application of the rule: Accordingly, out above. viewing in-
There stant side question Jaap, is no side is- but that under Rule 35(b)(2)M.R.Civ.P., identical, are sues prom- as the is rules on claim of same Montana, ulgated privilege identical, waiver thereof Jaap, Julie com- are mencing although variously damages general action for for her located. The personal discovery 26(a) injuries placed practically rule is issue identical. perceive physical why mental and We no reason arising condition case from accident, state, neighboring from the any physician- squarely waived on all patient privilege fours as to applicable as to her mental circumstances and rules, physical law and controversy. extremely persuasive. condition Ac- Moreover, cepting premise impressed we are physician- that the with the Mon- waived, 26(a), tana privilege application has court’s may been M.R.C.P. Court, 26(a). which is by way District almost identical to discovery, I.R.C.P. 26(a) order M.R.C.P. engage that defense states: informal, private with the interviews Discovery methods. Parties obtain physicians treating Jaap Julie her discovery by one or more of the follow- *15 alleged injuries? depositions upon methods: ex- oral way, granting
Put another
questions;
that
amination or written
written
tiff
any physician-patient
interrogatories;
has
production
waived
of documents
privilege relating
phys-
things
to her
permission
upon
mental and
or
or
to enter
limits,
ical
controversy,
condition in
or other property,
inspection
what
land
and
any,
if
power
purposes;
circumscribe the
of the
other
physical and mental ex-
aminations;
authorizing
District Court in
requests
and enforc-
and
for admission.
ing discovery under the
Rules
the court
Montana
Unless
orders otherwise under
(c)
rule,
of Civil Procedure?
frequency
subdivision
of this
of use of these methods is not limited.
agree
Although
рortion
we
with that
of the
Court
District
order which stated
623 P.2d
Jaap,
at 1391.
physician-patient privilege
that once the
Having not
a
in point
uncovered
case
waived,
has
physician
been
is to be
or Wyoming,
from Nevada
the circumnavi-
witness,
other
considered as
we con- gation of
bordering
completed
states is
clude that
the District Court does not
an
Oregon
with
examination of an
power,
discovery,
under the rules of
which hones
on the confidential relation-
private
order
interviews
coun-
between
ship
which is concomitant with the
party
possible adversary
sel for
and
one
cian-patient relationship. As
sowas
not,
witnesses, expert or
other.
on the
Washington’s
opinion,
unanimous Loudon
We derive
conclusion from exami-
justices
Oregon Supreme
the seven
of the
nation
Rules of
of the
Civil Procedure
They agreed upon
were
unanimous.
relating
discovery.
holding that
breach
physician’s
of the
by
discovery may
The methods
which
relationship gave
physician-patient
rise to
obtained,
under the Montana Rules of
of
patient. Humphers
cause
action in the
26(a).
Procedure,
Civil
are set
out Rule
Bank,
v. First Interstate
Or.
Jaap,
1391.
(1985).
623 P.2d at
brought
action was
P.2d 527
executor
bank as the
of the
out, following
The rule
was set
Mackey’s
Dr.
estate. The under-
deceased
emphasis,
court
subtle
“Obvi-
stated with
opinion,
facts
lying
were stated
adversary
ously
private
of an
interview
controversy:
issue in
was the
of
of the ‘methods’
dis-
witness is not one
upon
are called
to decide whether
Proce-
We
covery for which
Rules of Civil
damages
claim for
at 1391.
has stated a
provide.” Jaap, 623 P.2d
dure
physician re-
alleging that her former
of Evi-
We deem it
that Idaho Rule
clear
daughter
identity
her
whom
503(d)(3),
vealed
Exceptions
entitlement
dence
[to
given up
adoption.
had
equivalent
she
privilege],
the claim of
is the
above,
complaint pleads for
her
complaint,
counted
according
First,
theories:
five different
as Ramona Elwess
relief on
plaintiff, then known
nаme,
liability for
incurred
Mackey
Ramona Jean
or
her maiden
second,
Peek,
daughter
conduct’;
in St.
gave birth to a
‘outrageous
Bend, Oregon.
Medical
fell
professional
Charles
Center
secret
of a
disclosure
time, and her
unmarried at the
care,
diligence
She was
em-
and
of the
skill
short
Mackey, reg-
Harry
E.
physician,
in the commu-
other
ployed
hospital
as ‘Mrs. Jean
istered her
statute;
third,
commanded
nity and
day, Ramona consent-
The next
Smith.’
wrongfully breached
disclosure
that his
adoption by Leslie and
ed to the child’s
relationship;
privileged
confidential
Bend,
named her
Shirley
who
Swarens
fourth,
of confidential
that his disclosure
hospital’s medical
Leslie
Dawn.
privacy’
an ‘invasion
information was
sealed
concerning the birth were
records
intrusion
of an ‘unauthorized
in the form
they
marked to show that
were
seclusion, solitude, and
upon plaintiff’s
subsequently remarried
public. Ramona
affairs’;
fifth, that his disclo-
private
family. Only Ramona’s
raised a
Kastning
a con-
Dawn
breached
sures to
Mackey
and Dr.
mother and husband
The cir-
obligation
secrecy.
tractual
given
daughter she had
knew about the
granted defendant’s motion to
court
cuit
adoption.
up for
grounds
complaint
on the
dismiss
daughter,
years
Twenty-one
later
theory
short of each
the facts fell
Kastning,
known as Dawn
wished
now
entry
judgment
relief and ordered
biological
contact with her
establish
Ap-
appeal, the Court
defendant. On
gain
access to the
mother. Unable
first,
peals
the dismissal
affirmed
adoption
court file of her
confidential
second,
fifth counts
reversed
the at-
(though apparently able to locate
*16
relation-
third,
of confidential
breach
Dr.
tending physician),
sought out
Dawn
fourth,
privacy.
of
invasion
ship, and the
agreed
assist in her
Mackey, and he
Bank
Humphers v. First Interstate
of
Mackey gave
a letter
quest. Dr.
Dawn
P.2d 581
Or.App.
Oregon, 68
registered Ra-
which stated that he had
(1984).
allowed review.
We
hospital, that
mona Jean Peek at the
Bank, 298
Humphers v. First Interstate
although
not locate his medical
he сould
706-07,
527-28. The
696 P.2d at
Or. at
records,
administering
he
di-
remembered
first
Oregon Supreme Court on its review
her,
possi-
ethylstilbestrol to
and that the
cognizable
plaintiff
if
had a
ruled that
consequences of this medication made
ble
claim,
Mackey’sbreach of
from Dr.
it arose
biologi-
important
to find her
it
for Dawn
confiden-
duty to honor the
professional
statements were
cal mother. The latter
into existence
relationship which came
tial
help Dawn to
untrue and made
relationship was
physician-patient
when
confidentiality
records
breach
proceeded
then
into. The court
entered
adoption.
In
concerning her birth and
available law
analysis
its
Dr.
hospital personnel, relying on
In
be drawn.
would
its conclusion
letter,
make
Mackey’s
allowed Dawn to
so,
an Idaho
brought forth
doing
it
records,
copies
plaintiff’s
medical
thereon:
comment
albeit without
plaintiff, now
her to locate
which enabled
disclosing
liability for
physician’s
A
Humphers.
Ramona
patient
about a
information
confidential
pleased.
Humphers was not
Ramona
law
problem.
In common
a new
is not
development upset her
unexpected
more discussed
has
jurisdictions it
been
distress,
emotional
wor-
caused her
throughout much of this
litigated
than
humiliation, embarrass-
ry, sleeplessness,
for dam-
precedents
century. There are
normally.
ment,
inability to function
disclosure
unauthorized
age actions for
estate of
sought damages from the
She
confidence, although
conveyed
of facts
died,
action
had
Mackey,
Dr.
who
involving the disclosure
know of none
repre-
we
personal
as the
against defendant
claims are
Because such
adoption.
re-
of an
alleging the facts
After
sentative.
against
made
a variety of defendants
Mackey
Dr.
approach
himself did not
besides
professional
or other
pry
personal
into
facts
counselors,
banks,
against
instance
know;
indeed,
he did not
if he had
see, e.g., Peterson v. Idaho First Nation-
spoken
written or
to his former
Bank,
al
83 Idaho
relationship theory:
jury;
logical
ey helped
causes
But as
fice to collect
terest
that close
ents,
without a court order. ORS
to assume that Ms.
tect
ble for invasion of
supra, at
require
420. The statutes are
keep private.
out.
as a
lieve that
uninvited
phy,
offensive
tortious intrusion
clusion,
ed
publicity.
Doubtless
Here there is no claim of offensive
that the
privacy
plaintiff reasonably
or the
“privacy”
the
Nor,
deserving protection
it is established
injury
mother,
already
the
adoptive parents,
854-55,
prying
adoption
the
entry,
Dawn
The Court of
we
interests of the natural
like,
judgment
complaint alleges
by physical
plaintiff’s
to that interest. Dr. Mack-
damages
theory
think,
See Prosser and
but we are not
stated,
interest. That does not
Kastning
but in the sense of an
wiretapping, photogra-
into
§
privacy
Kastning
records to
upon plaintiffs
117. We do not be-
would
fits this case.
from
to
personal
of a court or a
interest
designed
Appeals
by
means such as
has
identify
does not suf-
find her bio-
or the child.
the statutes
anyone
anyone
seeking
became lia-
7.211,
sought
inspection
a case of
prepared
qualifies
conclud-
Keeton,
matters
to
an in-
432.-
who
who
par-
pro-
her
se-
positive duty
wrote in
to include
cret
cian,
statute
pations.
of
104 Neb.
rectly
Sutherland,
Moench,
as a condition
sional
S.W.2d 249
such
Sur.
(N.D.Ohio 1965)
timony
in OEC
(1958); Hammonds v. Aetna Cas. &
tory privilege to exclude the doctor’s tes-
nonconsensual
Some have
courts
By this
As
Nebraska,
patient implicit
[(1920)]:
both for the benefit
the case of the medical
legislation
early
practice
in
Co., supra
defined
Simonsen
[224]
point
504-1(2). See,
8 Utah 2d
litigation,
fact have found sources of a
‘betrayal
statute,
(1965) noting
as
thought
supra
detriment of
is
where a medical
of
of medicine or other occu-
are
imposed upon
duty
professional
in Tennessee. More di-
]
engaging
]
in the
legal
it
of a
enacted in this state
[215
such a
the
[243
appears to
177 N.W.
Swenson, supra,
*17
cf.
professional
Supreme'
Tenn.
duties
patient’s
e.g., Berry v.
confidentiality.
the absence of
knew the facts without an of general public policy. The relation of secrecy simply by telling commit a tort necessarily Kastning. physician patient is a them to Ms. advantages to often nec- conclude that the highly confidential one. It is parte proce- essary give gained for the information the informal ex to clearly outweighed by em- the about himself which be most dure are dan- would barrassing given, if the gers procedure presents phy- or harmful to him that to general the sician-patient relationship by circulation. This information well as bound, physician only upon brings not own pressures procedure the to professional of his attorney par- honor and the ethics physician bear on secret, high profession, keeр but agree wholeheartedly with ticipants. We reason of the affirmative mandate Washington Supreme when Court of A of wrongful itself. breach statute of unique nature it stated ‘[t]he confidence, and of such betrayal such relationship and the physician-patient trust, give rise action would to a civil pose dangers parte which ex interviews damages naturally flowing from such of justify the direct involvement counsel wrong. contact between plaintiff’s physician.’ Loudon v. 756 P.2d Mhyre, Wash.2d duty The contours of asserted 138,142 (1988). upon Accordingly, based legal confidentiality are determined provisions of 12-2235 and A.R.S. itself. § source external the tort claim policy we defense coun- public hold that malpractice medical sel in a duty physician’s keep A medical and parte com- engage in non-consensual ex information related about a treating phy- with plaintiff’s munications beyond im- question. confidence is It is sician. posed 677.190(5) pro- statute. ORS Duquette P.2d Duquette, 778 at 642. list- disqualifying vides for disci- or otherwise barring such ed some of the reasons for negli- plining physician ‘wilfully ex interviews: non-consensual gently divulging professional secret.’ Appeals thought upon Among the reasons relied re- could statutory provision permission breach of fusing grant for informal liability not lead to civil such liabili- privacy when parte interviews are the broad ty quite provi- inappropriate would be underlying physician-patient interest 677.190, sions of ORS that misses the relationship, potential liability tort point. wrong pri- The actionable breach or invasion duty breach in a rela- potential vacy, the that defense counsel confidential 677.190(5)only ORS establish- tionship; improperly influence may seek duty secrecy es the in the medical treating physicians or discour- tiff’s relationship. testifying, age physician from physician to duty loyalty 715-21, Or. at P.2d at Humphers, 298 discovery rules patient, and view (footnotes omitted; emphasis *18 532-35 add- physician- the extent of determine ed). patient privilege. Appeals, The Arizona Court of Division Court, 1, Duquette Superior v. 161 in 269, (1989), P.2d made a 778 634
Ariz. EX PARTE OPPOSING DISCUSSION: thorough analysis parte of the interview ex COMMUNICATIONS in problem held that a and defense engage in malpractice may suit medical rejected the con- Having discussed and parte non-consensual ex communications support petitioners tentions raised plaintiff’s treating physicians: with a communications, proceed we parte of ex overriding what feel are to address we CONCLUSION which, when policy considerations public our statu- conjunction of the counter- considered Upon review numerous justify privilege, a tory physician-patient vailing public policy considerations communications prohibition parte on ex presented in this we issue 558 would, effect, plaintiffs treating physicians ary physician
between a
for the
attorneys.
and defense
engage
Our initial con
may
conduct which
be con-
unique
sideration involves the
nature of
trary
fiduciary’s obligation
to a
physician patient relationship.
That
and,
addition,
good
faith
be
is,
foremost,
relationship
and
first
con
potentially harmful to the interests of
Udall,
fidential one. See M.
Arizona
patient
physician might
in that the
93,
(1960).
Law
Evidence
at 145
§
patient
disclose intimate facts of the
Thus,
legislature perceived
our
a need to
which are unrelated and irrelevant to
protect the confidential nature of the re
physical
placed
the mental or
condition
lationship by
statutory
enactment of
Consequently,
at issue in the lawsuit.
physician-patient privilege. See A.R.S.
parte
the ex
conference involves con-
(1982).
purpose
12-2235
of the
§
duct which could be violative of the
physician-patient privilege is to ensure
would,
fiduciary
duties of a
and
there-
that ‘the
will receive the best
fore,
contrary
public policy
be
by encouraging full
medical treatment
favoring
fiduciary
nature of the
history
and frank disclosure medical
physician-patient relationship.
symptoms by patient
and
to his doctor.’
595,
Ill.App.3d
102
at
Id. 148
at
Ill.Dec.
27, 31,
Jackson,
Lewin v.
108 Ariz.
492
181-82,
499 N.E.2d
961-62. We be-
406,
(1972).
P.2d
410
believе the
We
parte
lieve that ex
communications be-
public
widespread
has a
belief that infor
attorneys
plaintiffs’
tween defense
and
given
physician
mation
to a
in confidence
treating physicians would
destructive
parties
will not be disclosed to third
ab
fiduciary
the confidential and
na-
both
legal compulsion,
sent
further
we
physician-patient
tures of the
relation-
public
right
has a
to have
believe that
ship
recognized by stat-
which have been
expectation
this
realized. See Hum
utory and case law.
Bank, 68
phers v. First Interstate
Or.
support-
A
set of considerations
(1984),
second
573, 579,
581,
App.
684 P.2d
587
ing prohibition
parte
on ex
communica-
part,
part,
rev’d in
298 Or.
aff'd
However, believe, we do sents to the release of all of the informa- and there suggest, placed is no evidence to tion related to the legis- that the condition lature, believe, however, by creating a consensual waiver issue. We do not physician-patient privilege, legislature person intend- intended that a consents, ed that a public lawsuit, member of the also con- byfiling also to his sents, suit, by simply filing to his treating physician treat- engaging in ex
562 Columbia, person’s legal with that ad- of the District of but that there conferences appellate
versary.
was a recent District of Columbia
decision,
Garfinckel’s,
court
Vassiliades v.
Petrillo,
186-188,
102
Ill.Dec.
499
(D.C.App.1985),
cian.’
Miles had been seen he should be entitled to call Dr. Bascom Palmer Clinic. expert, including Flynn testify as an Miles, later, and his con- August Troy his treatment of Two weeks parents in Caffrey telephoned Troy Mr. Dr. John T. sultations with Miles’s capacity treating physician. as Flynn of the Bascom Palmer Clinic. On 5, 1978, doctor/patient argues defendant September Ms. Lewis conferred Flynn to privilege requires which Dr. Flynn requested with Dr. that he act patient’s privacy Dr. Farrell honor his is waived as a consultant on behalf of Troy Miles filed this lawsuit purpose reviewing the records the fact that ‘for the at issue. possibly puts testi- his medical condition subject in this law suit and (This hospital and a is a suit expert witness at trial.’ fying as an malpractice.) The de- (Lewis Affidavit) agreed medical Flynn Dr. doctor for argues Flynn Dr. further expert on or about fendant act as the defendant’s fiduciary duty to 26, 1979, cognizable he had received owes no January after might prevent him Troy Miles which records from Dr. Troy Miles’s medical expert. testifying as a defendant’s attorneys. Farrell’s explains 2. There is nothing in the record which received a letter and numerous tele- 1. The court Flynn Dr. circumstances under which the permitted Flynn asking phone that the court calls from Dr. February Troy Miles in to treat an or not he act as determine whether Flynn as a been disclosed after Dr. had еxpert The court did not for the defendant. expert. that the I assume defendant’s parents issues the doctor but instead discuss the Flynn’s role as of Dr. were not advised However, parties brief the issue. asked the parents expert. were aware If the defendant’s barring now seeks an order to the Flynn’s and consented Dr. conflict testimony. expert doctor’s 1982, treatment, February, the court should of those facts. made aware discovery Flynn testify; he in- suant to authorized under Dr. wants to applicable procedure. rules of civil my T role as formed the court that see witness, testifying expert qual- The other side of the coin relates to lawyers. conduct of Counsel should not speak on the scientific known and ified treating physician except pur- contact a in cases of fibro- unknowns retrolental discovery. A neces- suant to authorized (Dr. court.) plasia.’ Flynn’s letter sary corollary lawyers rule is that should Flynn he did assures the court that not contact doctors affiliated or associat- knowingly expert and act as both treating physician without full ed with a treating physician.3 Arguments similar of all relevant facts so that disclosure arguments in to the defendant’s this the kind of situa- doctor avoid rejected by the were Circuit Court in this case. tion that occurred No lesser County Valley Cook Barkin v. Skokie attorneys standard conduct Hospital, L 23428. In Community arguable. even (who attorneys that case the defense owing fiduciary duty addition to were from the same law firm as the confidentiality, expert employed as an attorneys for Dr. Farrell defendant, Flynn had a clear case) plaintiff’s treating contacted the *25 conflict of interest which he had an obli- physician and conferred with him with gation patient. He disclose to his respect acting expert. to his as a defense proper failed to make a disclosure and it The court held that the doctor owed his failure unin- is not relevant that his was patient duty confidentiality, of fiduci- likely tentional. It is also that a nature, ary extra-judicial communi- patient duty loyalty cian owes a of to his notwithstanding cations and that the ex- prevent testifying him from would malpractice litiga- istence of the medical (Al- expert against patient. as an his plaintiff, doctor/pa- tion filed the argue though Flynn might Dr. that his privilege protected patient tient testimony be the truth and will against any disclosures sanctioned or not patient, to his the mere not be adverse permitted by privilege the Illinois statute expert an fact that he takes the stand as (Ill.Rev.Stat. 51, 5.1) by ch. or the rules § employed the defendant assures discovery of the Illinois Practice Civil position his is adverse to that of his 22, 1982, Act. Judge On June James E. However, parties not patient.) Murphy barring entered an order a treat- I it briefed this issue and do not believe ing physician acting from expert as an necessary to rule on the basis of what directing for the defendants and the de- physician’s duty I perceive to be a attorney destroy fense all *26 (D.D.C.1983), McCray, Karsten appeal should have been tention that the 364, 509 Ill.App.8d 109 Ill.Dec. dismissed, ruling in then accord v. El and Yates N.E.2d appeal Assuming that the motion. its own Ill.App.3d 112 Ill.Dec. Deiry, 160 ques- dismissed leaves should have been (1987)represent 513 N.E.2d dismissed? “Why, why, it not tions: oh apply should jurisdiction law which sought the dismissal?” should have Who in circumstances of the to the factual pos- litigants, the Pearces were As with all prece sound case. Abundant stant appeal an adverse right sessed of a discussed law hereinabove dential case right, They have exercised decision. against allowing defense coun militates find three argument oral long after indulge in nonconsensual ex sel to dismissing ap- their of the Court members malpractice a medical interviews with belatedly and sua peal, ground raised treating physicians and sur plaintiff’s could clerk of court sponte, whereas Likewise, in accordance with geons. opinion which either issuing an have been Defense counsel precedent. law part McKee on the found error retaining attempt improperly in acted part reversed, no error on or found expert such ing to retain and affirmed. Judge McKee for the defense. witnesses entry judgment district court’s reversed; is in favor of Ollie for a new trial plaintiffs’ motion
denial of reversed; court’s denial the district order an in limine
plaintiffs’ motion for reversed; remanded for the cause is against defendant solely
new trial
Ollie. added.)
(Emphasis memorandum written
The district court’s out, il-
decision, set serves hereinabove notes potential tort liabili- discipline as well as herein, court, earlier as noted The district ty- unpersuasive, authority Illinois found Third, present at least in the Ill.App.3d McCray, v. namely Karsten participation in a non-consen- physician’s (2 Dist. 1,109 N.E.2d 1376 Ill.Dec. not be sual ex interview would 111. El-Deiry, 160 1987), and Yates voluntary Guidelines accord with 513 N.E.2d 112 Ill.Dec. App.3d Physicians and At- Cooperation Between Dist.1987), recent cases. (3 then both Maricopa County adopted torneys in District by the Second issued Karsten was Maricopa County Bar Asso- by the jointly
Notes
notes
his
Flynn’s willingness to
loyalty and Dr.
private contact and conference with the
duty.
breach
treating physician.
case,
the circumstances of this
Under
agree
analy-
I
with
Circuit Court’s
appropriate sanction is to bar
calling
Flynn
sis and to the extent I must follow Illi-
Dr.
defendant from
Accordingly,
privileges,
opin-
testify
any capacity.
nois
on state law
law
hereby
Flynn
that Dr.
binding.
the Court
orders
Flynn
ion is
Dr.
owes a fiduci-
testify by any of
called to
shall not be
ary duty
confidentiality
patient.
to his
the defendants in this case.
rule,
general
treating physician
As a
Miles,
(emphasis
patient’s
F.Supp.
not discuss his
medical con-
at 83-85
added).
pur-
opposing
except
dition
with
Dr.
attorneys
apparently
plaintiff in the lawsuit in which
did
was the
3. The
for defendant
testify
expert.
Flynn
plaintiff
Flynn
Con-
as a defense
not inform Dr.
that the
was
was
Institute,
they
just
sidering
before
fact that
two weeks
at the Bascom Palmer
affiliated,
attorneys
present
they
Flynn
were
Flynn
which Dr.
at the time
contacted
parents' deposition
learned
Flynn.
they
and
informed
at the
first contacted Dr.
Had
Clinic,
Flynn,
at the
was a
he would have been сonscious of the
that
attorneys’ apparent
give
Troy
fact that the
Miles he was about to treat
informa-
failure
full
Flynn
treating
Troy
is inexcusable.
and was
was the same
Miles who
tion to Dr.
basically
lustrate what was
the crux of and
This concludes our discussion
right of defense counsel to con-
appeal,
claimed
for the Pearces’
which has
reason
parte interviews
duct non-consensual ex
summarily
majority
dismissed.
been
and,
treating physicians,
plaintiff’s
nothing
opinion furnishes
to the trial bar
retaining
particular case
them as
that which was written
over
above
expert
for the defense. We
witnesses
McKee,
meaning-
Judge
appears to
note, however,
century
over
upon to
less.
McKee was called
statehood,
prior
to that for over thir-
controversy, and he did so. Had
decide the
existence,
ap-
ty years of territorial
it
challenge
ruling,
there been no
to his
there
pears that no one has ever advanced
appeal. But there was
would have been no
could
philosophy that defense counsel
specifically
challenge
appeal brought
an
ignore
patient-physician con-
elect to
viewed,
ruling.
majority
who
So
relationship, until now. That
fidential
casting
speak for the Court are
in stone for
itself,
were
history
remarkable
just
future similar
this one
but all
precedent
case law
there not abundant
precedent ruling of
cases the case
Doe v.
available,
up-
very
could
well suffice to
(D.C.C.1983).
Co.,