Carson v. Fine
| Decision Date | 26 May 1992 |
| Docket Number | No. 14000-4-II,14000-4-II |
| Citation | 67 Wn.App. 457,836 P.2d 223 |
| Parties | Terry L. CARSON and Carmen L. Carson, husband and wife, Appellants, v. Betsy L. FINE, M.D., et vir., et al., Respondents. Terry L. CARSON and Carmen L. Carson, husband and wife, Appellants, v. Gordon R. KLATT, M.D., et ux., et al., Respondents. |
| Court | Washington Court of Appeals |
Robert C. Van Siclen, Smythe & Van Siclen, Auburn, Kathryn A. Ellis, Weinstein, Hacker, Matthews & Young, P.S., Seattle, for Carmen and Terry Carson.
Jack G. Rosenow, Rosenow, Hale & Johnson, Tacoma, for Betsy L. Fine, M.D.
Everett A. Holum, McCarty, Holum, Causseaux & Rourke, Inc., Tacoma, for Tacoma-Pierce County Health Dept.
The jury returned a verdict in favor of Dr. Betsy Fine in this medical malpractice action. Carmen and Terry Carson appeal, arguing that the trial court erred in allowing one of Mrs. Carson's treating physicians to testify as an expert witness for the defense. We agree, reverse the judgment entered on the verdict, and remand for a new trial.
On August 8, 1985, Carmen Carson delivered her first child. She was attended by Dr. Fine, a family practice physician employed by the Tacoma-Pierce County Health Department. Dr. Fine performed an episiotomy during the course of the delivery. Unfortunately, the incision developed into a fourth degree laceration, which Dr. Fine attempted, unsuccessfully, to repair.
Mrs. Carson next consulted Dr. Klatt, who diagnosed a recto-vaginal fistula and advised repair surgery. 1 Dr. Klatt operated on Mrs. Carson; however, his repair also was unsuccessful.
Eventually, Mrs. Carson conferred with Dr. Kemp, who performed a third repair procedure in June of 1986. Although Carmen Carson's condition did improve after Dr. Kemp's surgery, she continued to suffer from incontinence, and, in July, 1986, the Carsons commenced suit in Pierce County Superior Court against Drs. Fine and Klatt. 2
In July of 1987, Mrs. Carson, pregnant with her second child, began seeing Dr. Duenhoelter for prenatal care. Dr. Duenhoelter was aware of Mrs. Carson's complications from the repaired fistula and, as a result of Mrs. Carson's condition, the doctor advised against a vaginal delivery. In January of 1988, Dr. Duenhoelter delivered the Carsons' second baby by Cesarean section.
At trial, in April, 1990, Mrs. Carson testified that she rarely leaves her home and does not work outside of the home or participate in family recreational activities because of lack of bladder and bowel control. She claimed that this situation, along with limitations on her sexual relations with her husband, has caused strain on her marriage.
In connection with her lawsuit against Drs. Fine and Klatt, in November of 1987 Mrs. Carson agreed to an order which waived the physician-patient privilege and allowed defendants to conduct ex parte interviews of her treating physicians. At the time of the order, Dr. Duenhoelter was one of Mrs. Carson's treating physicians. Counsel for the defense met ex parte with Dr. Duenhoelter and reviewed records of Dr. Fine's care and treatment of Mrs. Carson. When discussing Mrs. Carson's case with defense counsel, Dr. Duenhoelter expressed the opinion that all of Dr. Fine's conduct was well within the standard of care. Defendants then listed Dr. Duenhoelter as an expert witness and took a deposition in which the doctor stated his belief that Dr. Fine had not acted negligently in her treatment of Mrs. Carson.
On June 9, 1988 the Supreme Court issued its opinion in Loudon v. Mhyre, 110 Wash.2d 675, 756 P.2d 138 (1988). Loudon was filed after the meeting between Dr. Duenhoelter and counsel for the defense, but before the doctor's deposition. The Loudon court clarified and narrowed the rule regarding ex parte contacts, holding that a plaintiff-patient's waiver of the physician-patient privilege does not authorize ex parte communications between the defendant and the plaintiff's treating physicians. The court recognized the importance of the fiduciary relationship between doctor and patient, stating: "We find it difficult to believe that a physician can engage in an ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient ... The unique nature of the physician-patient relationship and the dangers which ex parte interviews pose justify the direct involvement of counsel in any contact between defense counsel and a plaintiff's physician." Loudon v. Mhyre, 110 Wash.2d at 679, 691, 756 P.2d 138. Basing its decision on these compelling public policy concerns, the Loudon court prohibited ex parte interviews of plaintiff's doctor.
In a pretrial motion the Carsons argued for the exclusion of Dr. Duenhoelter's expert testimony, contending that the physician-patient privilege and the fiduciary relationship between doctor and patient should prohibit a treating physician from testifying as an expert witness against his or her patient, and that Dr. Duenhoelter had ex parte contacts with the defense, even after the court's holding in Loudon. The Carsons also asked the trial court to exclude the doctor's testimony, under ER 403, as cumulative and unfairly prejudicial. 3 The trial court denied the motion, noting only that "there is no conduct that occurred which would preclude the doctor from giving testimony in this case." Because the Carsons did not call Dr. Duenhoelter as a fact witness, he testified only for the defense. Dr. Duenhoelter did, however, clearly state that he had been one of Mrs. Carson's treating physicians. The jury found no negligence on the part of Dr. Fine.
The Carsons argue on appeal that the trial court should not have allowed Dr. Duenhoelter to testify for the defense. Initially, we note that a trial court has considerable discretion when ruling on the admissibility of evidence. This court will not reverse an evidentiary ruling absent a showing of a manifest abuse of that discretion. See Brouillet v. Cowles Pub. Co., 114 Wash.2d 788, 791 P.2d 526 (1990).
Appellate courts review alleged invasions of statutory privileges by considering and interpreting the pertinent statutory provisions. State v. Boehme, 71 Wash.2d 621, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1259, 20 L.Ed.2d 164 (1968). Reviewing this case under these standards, we hold that Dr. Duenhoelter's testimony violated neither the physician-patient privilege nor the Loudon rule against ex parte contacts. Further, the trial court did not abuse its discretion in finding that the testimony was not cumulative. Nonetheless, we reverse because the trial court failed to exercise its discretion and weigh, as it must under ER 403, the probative value of Dr. Duenhoelter's testimony against the danger of unfair prejudice.
Appellants first contend that the trial court erred when it did not rule that the statutory physician-patient privilege, when read with the Loudon court's expressed policy of protecting the fiduciary relationship between doctor and patient, prohibits a plaintiff's treating physician from testifying as an expert for the defense. 4 The physician-patient privilege itself does not bar Dr. Duenhoelter's testimony as a defense expert. RCW 5.60.060 only prohibits questioning a physician about information acquired in attending the patient, as opposed to information acquired solely through the study of medicine. Furthermore, Mrs. Carson specifically waived any privilege by filing her lawsuit and by agreeing to the order allowing defense counsel to meet with her treating physicians. See RCW 5.60.060(4)(b). Even when considered in conjunction with the public policy against ex parte contacts expressed in Loudon, the privilege does not preclude a plaintiff's treating physician from testifying as a defense expert.
Similarly, the trial court did not err when it found that the Loudon rule against ex parte contacts was not violated in this case. The initial meeting between the defendant and Dr. Duenhoelter took place before Loudon was decided. Although Dr. Duenhoelter and counsel for the defense had some additional contacts after publication of the Loudon decision, the record shows that the communications were limited and did not include, other than in deposition, any discussion of the Doctor's care and treatment of Mrs. Carson.
Appellants also have failed to show that the trial court abused its discretion under ER 403 when it did not exclude Dr. Duenhoelter's testimony as "needless presentation of cumulative evidence." Defendants in this case called only one additional expert to testify as to the standard of care in performing an episiotomy and repair. We cannot say that the trial court acted unreasonably by allowing the testimony of two experts. Furthermore, the admission of evidence which is merely cumulative is not prejudicial error. State v. Todd, 78 Wash.2d 362, 474 P.2d 542 (1970).
The heart of the Carsons' argument is that the probative value of Dr. Duenhoelter's testimony was "substantially outweighed by the danger of unfair prejudice" and that the court should therefore have excluded it under ER 403. Evidence is generally unfairly prejudicial if it is likely to provoke a juror's response on an improper basis--commonly, but not necessarily, an emotional basis. See Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence § 403 at 403-33 (1991); K. Tegland, Evidence § 105 at 349 (1989). See also State v. Rice, 48 Wash.App. 7, 737 P.2d 726 (1987).
Although the trial court need not engage in balancing probative value as opposed to danger of unfair prejudice on the record every time a party makes an ER 403 objection, State v. Gould, 58 Wash.App. 175, 791 P.2d 569 (1990), without the assistance afforded by such a record, it is difficult for an appellate court to evaluate the trial court's decision...
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Carson v. Fine
...a defense expert and that Dr. Duenhoelter's testimony did not violate the rule against ex parte contacts in Loudon. Carson v. Fine, 67 Wash.App. 457, 462, 836 P.2d 223 (1992). The court noted that plaintiff had specifically waived any privilege and had permitted ex parte contacts by enterin......
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Reinert v. Heller
... ... McManus , 185 Wn.2d 466, 372 P.3d 764 (2016); ... Saldivar v. Momah , 145 Wn.App. 365, 396, 186 P.3d ... 1117 (2008). Carson v. Fine , 67 Wn.App. 457, 462-63, ... 836 P.2d 223 (1992), aff'd in part, rev'd in ... part , 123 Wn.2d 206, 867 P.2d 610 (1994). The ... ...
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Table of Cases
...155 P.3d 161 (2007): 4.3(1), 4.3(13) Carr v. Blue Cross of Wash. & Alaska, 93 Wn. App. 941, 971 P.2d 102 (1999): 17.6(4) Carson v. Fine, 67 Wn. App. 457, 836 P.2d 223 (1992), aff'd in part, rev'd in part, 123 Wn.2d 206 (1994): 16.6(4) Carter, In re, 172 Wn.2d 917, 263 P.3d 1241 (2011): 24.6......
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§ 16.6 Form of Decision: Published and Unpublished Decisions
...may in exceptional cases withhold publication of an opinion pending a decision on a motion to reconsider the decision. Carson v. Fine, 67 Wn. App. 457, 836 P.2d 223 (1992) (opinion published after denial of reconsideration), aff'd in part, rev'd in part, 123 Wn.2d 206, 836 P.2d 223 (1994). ......