Duquette v. Superior Court
161 Ariz. 269, 778 P.2d 634, 40 Ariz. Adv. Rep. 27 (1989)
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Rule of Law:
Defense counsel in a medical malpractice action may not engage in non-consensual ex parte communications with the plaintiff's treating physicians. Discovery from such physicians must be conducted through formal methods authorized by the rules of civil procedure.
Facts:
- Eric Lamberty was delivered by Dr. Russell Duquette at Scottsdale Memorial Hospital on September 23, 1983.
- During his first year, Eric received ongoing pediatric care from Dr. Duquette and was also seen by numerous other physicians for various conditions.
- In August 1984, Eric was diagnosed with a dermoid tumor in and around his spinal column, which required surgery.
- The diagnosis and surgery involved treatment from at least four additional physicians.
- The Lambertys believed Dr. Duquette was negligent for failing to properly treat Eric at birth and for failing to diagnose the tumor in a timely manner.
- In the summer of 1987, attorneys for Dr. Duquette and the hospital conducted private, ex parte interviews with approximately thirteen of Eric Lamberty's treating physicians.
- These interviews were conducted without the express consent of Eric Lamberty, his parents, or his legal counsel.
Procedural Posture:
- The parents of Eric Lamberty (plaintiffs) filed a medical malpractice action against Dr. Russell Duquette and Scottsdale Memorial Hospital (defendants/petitioners) in Maricopa County Superior Court, the trial court of first instance.
- Plaintiffs filed a motion to bar testimony and disqualify defense counsel after learning that defense counsel had conducted ex parte interviews with their son's treating physicians.
- The trial court judge granted the motion in part, ruling that ex parte communications were prohibited and barring the physicians from testifying as defense experts unless first called by the plaintiffs.
- The trial court denied the motion to disqualify defense counsel.
- The defendants sought special action review from the Arizona Court of Appeals, an intermediate appellate court, challenging the trial court's order barring the physicians' testimony.
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Issue:
Does a plaintiff's filing of a medical malpractice lawsuit, which impliedly waives the physician-patient privilege for the condition at issue, permit defense counsel to engage in ex parte communications with the plaintiff's non-party treating physicians without the plaintiff's consent?
Opinions:
Majority - Contreras, J.
No. The filing of a medical malpractice lawsuit does not permit defense counsel to engage in ex parte communications with a plaintiff's treating physicians. Although filing suit creates an implied waiver of the physician-patient privilege for the condition at issue, this waiver only extends to formal discovery methods and does not authorize informal, non-consensual private interviews. The court reasoned that public policy strongly favors prohibiting such communications to protect the confidential and fiduciary nature of the physician-patient relationship. Allowing ex parte interviews would create pressure on physicians, risk the disclosure of irrelevant but highly private medical information, and place both physicians and defense attorneys in the untenable position of determining the scope of the privilege waiver without judicial oversight or the presence of plaintiff's counsel. The court concluded that these dangers to the physician-patient relationship far outweigh any practical advantages of informal discovery, such as reduced cost or convenience.
Concurring - Brooks, P.J.
Yes, I agree with the result, but the court should not be creating this rule. The concurring opinion agrees with the majority's policy analysis that ex parte communications are problematic and that the sanction should be vacated. However, the author argues that creating such a broad, prohibitive rule is a matter for the state supreme court's rule-making authority, not for an intermediate appellate court to decide by judicial fiat. The concurrence concludes that because no statute or rule explicitly prohibited these communications at the time they occurred, it was improper to impose sanctions on defense counsel. The matter should be remanded to address any specific information improperly obtained, but a new general rule should not be announced in this opinion.
Analysis:
This decision establishes a bright-line rule in Arizona prohibiting defense counsel from conducting informal, private interviews with a plaintiff's treating physicians. It clarifies that the implied waiver of physician-patient privilege resulting from a lawsuit is limited in scope and does not create a discovery free-for-all. By restricting defendants to formal discovery methods like depositions, the court prioritizes the protection of the confidential doctor-patient relationship over the potential efficiencies of informal methods. This precedent ensures that a plaintiff's counsel can be present during any questioning of a treating physician to object to irrelevant inquiries and safeguard against undue influence.
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