Christensen v. Munsen

• Decision Date: 10 February 1994
• Docket Number: No. 60080-5,60080-5
• Citation: 867 P.2d 626,123 Wn.2d 234
• Court: Washington Supreme Court
• Parties: , 30 A.L.R.5th 822 Maren CHRISTENSEN, Appellant, v. Richard S. MUNSEN, M.D., Respondent.

Page 234

123 Wn.2d 234

867 P.2d 626, 30 A.L.R.5th 822

Maren CHRISTENSEN, Appellant, v. Richard S. MUNSEN, M.D., Respondent.

No. 60080-5.

Supreme Court of Washington En Banc.

Feb. 10, 1994.

Danielson, Harrigan & Tollefson, G. Van Tollefson, Sharon Hazzard, Seattle, for appellant.

Williams, Kastner & Gibbs, Mary H. Spillane, Seattle, for respondent.

MADSEN, Justice.

The main issue presented is whether the trial court erred in allowing one of plaintiff's treating physicians to testify as a defense witness in this medical malpractice action. We hold that no error occurred and affirm the judgment of the trial court in favor of the defendant.

FACTS

From August 11, 1980, until June 8, 1987, Seattle ophthalmologist Richard Munsen, the defendant herein, treated Maren Christensen, the plaintiff herein, for pars planitis and its complications. Pars planitis is an inflammation of the eye and both its cause and cure are unknown. The disease generally occurs in children and young adults and "burns out" after several years. If the complications of pars planitis can be controlled, the prognosis is good. One complication of pars planitis is cystoid macular edema (CME), which is a swelling of the retina. CME causes the central vision to become blurred and fuzzy, and, if untreated, can lead to permanent central vision loss and legal blindness. Another possible complication of pars planitis is glaucoma, an elevated pressure of the eye that ultimately leads to optic nerve damage and vision defects if not treated.

While under the defendant's care, plaintiff developed CME secondary to her pars planitis. The defendant treated plaintiff's CME first with oral steroids and then with steroid injections. In October 1982, the defendant injected Depo-Medrol, and in April 1983 he injected Kenalog. When plaintiff returned to defendant a few months later, she had elevated pressure in both eyes. The defendant noted that plaintiff was a probable "steroid responder", or a person who has temporary eye pressure increases--temporary glaucoma--after being given steroids.

Over the course of the next 5 years, the defendant administered Depo-Medrol and then Kenalog in an attempt to cure plaintiff's pars planitis and CME. During this time, plaintiff's eye pressures fluctuated. The plaintiff last visited the defendant on June 8, 1987. By this time her eye pressures were up and were not going down as they had previously. The defendant wanted another glaucoma specialist to recommend a course of action and referred plaintiff to Dr. Richard Mills, a professor in the ophthalmology department at the University of Washington who subspecializes in glaucoma.

When Dr. Mills saw plaintiff on July 27, 1987, her eye pressures had increased significantly, and Dr. Mills' diagnosis was severe intractable glaucoma secondary to pars planitis. Plaintiff then underwent a lengthy series of surgeries and continuing steroid treatment to control her eye pressures and to remove membranes and cataracts.

On November 13, 1989, plaintiff filed suit against the defendant, alleging that she was legally blind as a result of his failure to follow the standard of care required of an ophthalmologist in Washington. The main issue at trial was whether plaintiff's glaucoma and resulting legal blindness were caused by the defendant's injections of Kenalog or by the plaintiff's underlying eye disease, pars planitis. Plaintiff also sought to show that the defendant failed to obtain her informed consent before administering Kenalog.

After 4 hours of deliberation, the jury returned a verdict in favor of the defendant. Plaintiff then filed an appeal which the Court of Appeals certified to this court pursuant to RCW 2.06.030(d). Five issues are presented dealing with the admission of expert testimony and certain instructional rulings. Plaintiff does not, however, challenge the sufficiency of the evidence.

I

The principal issue is whether the trial court erred in allowing one of the plaintiff's treating physicians to testify as an expert witness for the defense. At trial, Dr. Mills testified for the defense regarding the cause of plaintiff's glaucoma and vision loss. Dr. Mills stated that he thought the glaucoma was related more to plaintiff's pars planitis than to her steroid treatment. Before he testified, plaintiff acknowledged in an offer of proof that Dr. Mills could testify for the defense regarding medical facts acquired during the course of her treatment, but argued that adverse opinion testimony would breach his fiduciary duty toward her. Plaintiff makes the same claim here in challenging the admission of Dr. Mills' testimony.

We recently addressed this issue in Carson v. Fine, 123 Wash.2d 206, 867 P.2d 610, (1994) and concluded that a treating physician may testify as to both fact and opinion in a medical malpractice action regardless of whether the physician is a defense or plaintiff's witness. Such testimony is admissible because a patient waives the physician-patient privilege upon filing a medical malpractice action. RCW 5.60.060(4)(b); Randa v. Bear, 50 Wash.2d 415, 421, 312 P.2d 640 (1957). Once the physician-patient privilege is waived, it constitutes a waiver of all of a physician's knowledge of the physical condition asked about. Carson, 123 Wash.2d at 216, 867 P.2d at 616-17; 8 J. Wigmore, Evidence § 2390, at 861 (1961).

As we stated in Carson, the fiduciary nature of the physician-patient relationship is not an independent basis to preclude a treating physician's testimony once the patient-physician privilege has been waived. While a physician assumes certain obligations in treating and advising a patient, these obligations do not include refraining from offering adverse testimony against a patient. The physician has an independent duty to testify honestly and truthfully in a court of law, be it in favor of the plaintiff or the defense. See Carson, at 218-19, 867 P.2d at 618.

The need for truth outweighs any residual privacy interest stemming from the physician-patient relationship once a patient puts his or her medical condition at issue by filing suit. See Torres v. Superior Court, 221 Cal.App.3d 181, 187, 270 Cal.Rptr. 401, 404 (1990); Orr v. Sievert, 162 Ga.App. 677, 680, 292 S.E.2d 548 (1982). At that point, a treating physician may offer truthful testimony regarding the condition at issue regardless of which party the testimony benefits. " 'Absent a privilege no party is entitled to restrict an opponent's access to a witness, however partial or important to him, by insisting upon some notion of allegiance.' " Carson, 123 Wash.2d at 220, 867 P.2d at 618 (quoting Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C.1983)). We thus conclude, pursuant to our analysis here and in Carson, that the trial court did not err in allowing one of plaintiff's treating physicians to offer opinion evidence in favor of the defense.

Plaintiff also challenges Dr. Mills' testimony on the basis that it violated the trial court's own orders concerning expert testimony. On February 1, 1991, the court ruled that each party would be limited to one expert per specialty area, not to exceed two experts per specialty. The five specialty areas were pars planitis, glaucoma, pharmacology, economics, and rehabilitation. After designating its experts, the defense noted that it hoped to call Dr. Mills as well, without having him count as one of its five experts.

On June 24, the court ruled that Dr. Mills could testify, but informed the defense that if he were called,

he is your expert for the purpose of expressing opinions. You can call Dr. Mills for the purpose of expressing his facts as to what he did in his treatment, but if you are going to offer opinions as to causation or standard of care, then he is your expert and you have called him.

Report of Proceedings (June 24, 1991), at 14. Plaintiff contends that pursuant to this order, both parties could call only one expert to testify as to causation or standard of care, and that the defense violated the order by allowing two experts to testify regarding the cause of her glaucoma. She also contends that, pursuant to its orders, the court should have barred other duplicative expert testimony.

The defense responds that if this is a proper reading of the court's order, then plaintiff violated it as well, since two of her experts offered causation testimony. Furthermore, in her designation of witnesses, plaintiff noted her intent to question three of her experts about the standard of care and two about the defendant's treatment of her glaucoma. Under the plaintiff's current reading, such testimony would clearly violate the court's order regarding expert testimony.

It makes more sense to view the court's order regarding Dr. Mills in its proper context; that is, as a decision to allow Dr. Mills to serve as the defendant's glaucoma expert instead of Dr. Drance, the glaucoma expert initially designated. In keeping with her original ruling of one expert per specialty issue, the judge on June 24 was informing the defense that if it called Dr. Mills, he was its one expert on glaucoma--on its cause and on the defendant's role in its development. Thus, multiple testimony regarding causation and standard of care would not violate the court's order if it came from different specialty area experts, which it did in this case.

The admissibility and scope of an expert's testimony is a matter within the court's discretion. Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wash.2d 123, 130, 776 P.2d 666 (1989); Orion Corp. v. State, 103 Wash.2d 441, 462, 693 P.2d 1369 (1985). Similarly, the admissibility of cumulative evidence lies within the trial court's discretion. Mullin v. Builders Dev. & Fin. Serv., Inc., 62 Wash.2d 202, 206, 381 P.2d 970 (1963); Sons of Norway v. Boomer, 10 Wash.App. 618, 620-21, 519 P.2d 28 (1974). The specialty areas in this case were highly technical and also interrelated. The trial court may have deemed some cumulative...