Carson v. Fine

Decision Date10 February 1994
Docket NumberNo. 59887-8,59887-8
Citation123 Wn.2d 206,867 P.2d 610
CourtWashington Supreme Court
PartiesTerry L. CARSON and Carmen L. Carson, husband and wife, Respondents, v. Betsy L. FINE, M.D., et vir., et al., Petitioners.

McClure Reed, William R. Hickman, Pamela A. Okano, Heather Houston, Seattle, Rosenow, Johnson, Graffe, Keay Pomeroy & Moniz, Jack G. Rosenow, Marilyn W. Schultheis, Tacoma, for petitioners.

Smythe & Van Siclen, P.S., Inc., Robert C. Van Siclen, John S. Stocks, Auburn, Weinstein, Fisher & Riley, Kathryn A. Ellis, Seattle, Preston, Thorgrimson, Shidler, Gates & Ellis, Kathleen B. Barrett, Robert J. Backstein, Tacoma, for respondents.

Christine O. Gregoire, Atty. Gen., Michael Madden, Sr. Counsel, Seattle, amicus curiae, for petitioners.

Malcolm L. Edwards, Seattle, amicus curiae, for petitioners on behalf of the Washington State Medical Ass'n.

Russell C. Love, Seattle, amicus curiae, for petitioners on behalf of Washington Defense Trial Lawyers.

Bryan P. Harnetiaux, Spokane, Gregg L. Tinker, Seattle, amicus curiae, for respondents on behalf of Washington State Trial Lawyers Ass'n.

John Ladenburg, Pierce County Prosecutor, Chris Quinn-Brintnall, Deputy, Tacoma, amicus curiae on behalf of Washington Association of Pros. Attys.

MADSEN, Justice.

At issue is the admissibility of adverse opinion evidence offered by a treating physician against the plaintiff, his former patient in a malpractice action filed against another physician. In this case, the Court of Appeals reversed the defendant's jury verdict and held that the trial court should have balanced, on the record, the probative value of the proposed adverse testimony against the danger of its unfair prejudice under ER 403 before admitting the testimony. We granted review and now reverse the Court of Appeals.


On August 8, 1985, Carmen Carson (hereafter referred to as the plaintiff) gave birth to her first child. Dr. Betsy Fine, a family practitioner, delivered the baby. Dr. Fine (hereafter referred to as the defendant) performed an episiotomy during the delivery. The incision developed into a fourth degree laceration which the defendant attempted, unsuccessfully, to repair.

Plaintiff subsequently consulted Dr. Gordon Klatt about the laceration. Dr. Klatt diagnosed a rectovaginal fistula, an abnormal passage leading from one abscess cavity or organ to another. He attempted repair surgery, but was also unsuccessful. Plaintiff then consulted Dr. Aaron Kemp, who performed a third repair procedure in June 1986. Although the operation improved plaintiff's condition, she continued to suffer from incontinence. In July 1986, plaintiff and her husband sued the defendant and Dr. Klatt. The suit against Dr. Klatt was later dismissed.

In July 1987, plaintiff, pregnant with her second child, began seeing Dr. Johann Duenhoelter for prenatal care. Dr. Duenhoelter was aware of plaintiff's condition and delivered the second child by caesarean section in January 1988.

In connection with her lawsuit, plaintiff agreed to an order waiving her physician-patient privilege with regard to all physicians who had provided her care or treatment, except for four experts consulted in anticipation of litigation. The order further provided that the defense could conduct ex parte interviews with her treating physicians. At the time of the order, Dr. Duenhoelter was one of plaintiff's treating physicians. At an ex parte interview, he opined that the defendant's conduct was not negligent and was within the standard of care. The defense listed Dr. Duenhoelter as an expert witness and took his deposition, where he repeated that the defendant had not acted negligently in treating the plaintiff.

Prior to the deposition of Dr. Duenhoelter, this court issued Loudon v. Mhyre, 110 Wash.2d 675, 756 P.2d 138 (1988). In Loudon, this court held 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 thus prohibited ex parte interviews between a plaintiff's physicians and defense counsel. Loudon, at 682, 756 P.2d 138.

In a pretrial motion, plaintiff 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 also claiming that Dr. Duenhoelter had had ex parte contacts with the defense in violation of Loudon. Plaintiff also asked the trial court to exclude the doctor's testimony, under ER 403, as cumulative and unfairly prejudicial. The trial court denied the motion and Dr. Duenhoelter testified for the defense. The jury found no negligence on the defendant's part.

Plaintiff appealed and argued that Dr. Duenhoelter violated his fiduciary duty and the physician-patient privilege by offering adverse opinion testimony, that his testimony was cumulative and unfairly prejudicial under ER 403, and that the trial court should have excluded Dr. Duenhoelter's testimony because Loudon prohibited ex parte contacts as a matter of law.

The Court of Appeals held that the physician-patient privilege did not bar the plaintiff's treating physician from testifying as 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 entering into the agreed order. Carson, at 462, 836 P.2d 223. The Court of Appeals also explained that the fact that the defense already had an expert to testify regarding standard of care did not mean that Dr. Duenhoelter's testimony was needlessly cumulative. The court noted, moreover, that the admission of cumulative evidence is not prejudicial error. Carson, at 462-63, 836 P.2d 223.

Nevertheless, the Court of Appeals reversed. It held that, under ER 403, the nature of the treating physician's defense testimony required the court to weigh the probative value of such testimony against the danger of unfair prejudice on the record for purposes of appellate review. Carson, at 467, 836 P.2d 223. The court set forth six factors that the trial court should have considered before allowing the plaintiff's treating physician to testify on behalf of the defense. Carson, at 466, 836 P.2d 223. Since the trial court had failed to evaluate these factors on the record, the Court of Appeals lacked the basis to review whether the evidence had been properly admitted. Thus, the Court of Appeals reversed and remanded so that the trial court could consider the six factors it proposed before admitting Dr .Duenhoelter's testimony. Carson, at 468, 836 P.2d 223. The defendant then sought review of the Court of Appeals' opinion, which this court granted.


In her petition for review, the defendant argues that the plaintiff waived the physician-client privilege when she filed an action for malpractice. She alleges that the Court of Appeals then effectively reinstated the privilege by creating an insurmountable burden for the defense to overcome in order to present the adverse testimony of a treating physician. In response, the plaintiff contends that while she may have waived the physician-patient privilege with regard to any factual evidence of her medical condition, her waiver did not extend to adverse opinion evidence offered by one of her treating physicians. In evaluating these arguments it is first necessary to determine the purpose and scope of Washington's physician-patient privilege.

This privilege is set forth in RCW 5.60.060(4), and prohibits examining a physician in a civil action as to any information acquired in attending a patient without his or her consent. The privilege is a creature of statute, and thus is a procedural safeguard and not a rule of substantive or constitutional law. Department of Social & Health Servs. v Latta, 92 Wash.2d 812, 819, 601 P.2d 520 (1979); State v. Boehme, 71 Wash.2d 621, 634, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1259, 20 L.Ed.2d 164 (1968). At common law, no testimonial privilege existed for communications or information exchanged between patient and physician. Latta, 92 Wash.2d at 819, 601 P.2d 520; Boehme, 71 Wash.2d at 634, 430 P.2d 527.

One purpose of the statutory privilege is to surround patient-physician communications with a "cloak of confidentiality" to promote proper treatment by facilitating full disclosure of information. Latta, at 819, 601 P.2d 520; Boehme, at 635, 430 P.2d 527. Another purpose of the privilege is to protect the patient from embarrassment or scandal which may result from revelation of intimate details of medical treatment. Latta, at 819, 601 P.2d 520; Boehme, at 636, 430 P.2d 527.

As a statute in derogation of common law, RCW 5.60.060(4) is to be construed strictly, and limited to its purposes. Latta, at 819, 601 P.2d 520; see also Randa v. Bear, 50 Wash.2d 415, 420, 312 P.2d 640 (1957). Indeed, the statutory privilege is now expressly limited by legislative amendment. In 1986, the Legislature amended RCW 5.60.060(4) to provide that the privilege is deemed to have been waived 90 days after the filing of a personal injury or wrongful death action. RCW 5.60.060(4)(b). 1 The amendment is a codification of existing Washington case law which holds that waiver occurs even without plaintiff's express consent. Specifically, this court has held that the introduction by the patient of medical testimony describing the treatment and diagnosis of an illness waives the privilege as to that illness, and the patient's own testimony to such matters has the same effect. Randa, at 421, 312 P.2d 640; McUne v. Fuqua, 42 Wash.2d 65, 76, 253 P.2d 632 (1953).

Other authorities agree that a patient voluntarily placing his or her...

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