Sorensen v. Barbuto

Decision Date01 February 2008
Docket NumberNo. 20060816.,20060816.
Citation177 P.3d 614,2008 UT 8
PartiesNicholas SORENSEN, Kevin Sorensen, and Pamela Sorensen, limited guardians and conservators of Nicholas Sorensen, Plaintiffs and Respondents. v. John P. BARBUTO, individually, and John P. Barbuto, M.D., P.C., dba Neurology in Focus, Defendants and Petitioners.
CourtUtah Supreme Court

DURHAM, Chief Justice:


¶ 1 This case comes before us on a writ of certiorari to the Utah Court of Appeals. We granted the writ of certiorari on two questions: (1) whether by filing a personal injury suit Nicholas Sorensen waived any duty of confidentiality encompassing ex parte communications between himself and Dr. John Barbuto in that suit; and (2) whether the court of appeals erred in construing the scope of the privilege set forth in rule 506 of the Utah Rules of Evidence and/or the scope of the exception to the privilege set forth in subpart (d)(1). Dr. Barbuto argues that the court of appeals erred in establishing a common law fiduciary-like duty of confidentiality that is beyond the normal scope of the privilege arising from the physician-patient relationship. We affirm the court of appeals' decision and remand the case to the district court for further proceedings.


¶ 2 In July 1999, Sorensen suffered brain and back injuries as a passenger in a singlecar accident. Dr. Barbuto treated Sorensen for seizures and head injuries. After approximately eighteen months, Sorensen was forced to change physicians when his medical insurance plan dropped Dr. Barbuto from its list of approved providers. Sorensen continued to receive medical care from another physician.

¶ 3 Sorensen subsequently filed a personal injury action, seeking compensation from the driver's insurer. Sorensen's medical records were submitted into evidence and the insurer's defense counsel subpoenaed Dr. Barbuto to testify during the May 2003 trial. The trial was postponed until October. The course of events during this five-month delay gives rise to Sorensen's claims against Dr. Barbuto. During that time, Dr. Barbuto participated in ex parte communications with the defense team and agreed to testify as an expert on behalf of the insurance company against Sorensen.

¶ 4 The ex parte communications between Dr. Barbuto and the insurer's defense counsel remained unknown to Sorensen until just prior to trial. After a motion in limine was filed, the trial court excluded Dr. Barbuto's testimony because the insurer's counsel had not designated him as an expert in a timely fashion. Sorensen prevailed in the personal injury action.

¶ 5 In 2004 Sorensen filed this action against Dr. Barbuto claiming that, as his former physician, Dr. Barbuto breached a covenant of good faith and fair dealing, which encompasses a physician's duty of confidentiality, as well as other tort causes of action. Dr. Barbuto filed a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure. The trial court granted the motion. The Utah Court of Appeals affirmed in part and reversed in part, holding that (1) the dismissal of the contract claim was appropriate since breach of confidentiality is actionable in tort; (2) ex parte communications between opposing counsel and Dr. Barbuto amounted to a breach of Dr. Barbuto's fiduciary duty of confidentiality, which gave rise to a negligence claim; (3) Sorensen's invasion of privacy claim failed because disclosure to defense counsel did not equate to a public disclosure; and (4) Sorensen could maintain a claim of intentional infliction of emotional distress against Dr. Barbuto.


¶ 6 Dr. Barbuto argues that Sorensen authorized the ex parte communications between Dr. Barbuto and defense counsel by placing his physical condition at issue in the personal injury suit. Dr. Barbuto also argues that the court of appeals improperly altered the nature of the physician-patient relationship by imposing a fiduciary duty of confidentiality on him. The primary issue presented by this appeal is whether Utah recognizes a duty of confidentiality that is more extensive than the judicial privilege afforded under the Utah Rules of Evidence and whether that duty precludes the type of ex parte communications alleged by Sorensen.


¶ 7 Dr. Barbuto argues that the physician's duty of care was not breached because his disclosures to defense counsel were permitted under Utah Code section 78-24-8(4) (2002). Dr. Barbuto claims that section 78-24-8(4), not rule 506 of the Utah Rules of Evidence, controls privilege in the physicianpatient relationship. Section 78-24-8(4) protects information a physician obtains while treating a patient from disclosure as part of court proceedings. A physician is permitted to "provide information, interviews, reports, records, statements, memoranda, or other data relating to the patient's medical condition" when a patient places a medical condition at issue in a court proceeding. Id.

¶ 8 This court has previously held that "rule 506 supersedes section 78-25-8(4), and ... rule 506 applies to both criminal and civil proceedings." Burns v. Boyden, 2006 UT 14, ¶ 12 & n. 2, 133 P.3d 370 (citing Utah Rule of Evidence 506 advisory committee note. (stating that rule 506 is intended to supersede statutory privilege)); see also Debry v. Goates, 2000 UT App 58, ¶ 24 n. 2, 999 P.2d 582 (holding that the scope of the physicianpatient privilege is exclusively controlled by rule 506).

¶ 9 Rule 506 privilege enables a patient to prevent a physician "from disclosing diagnoses made, treatment provided, or advice given, by a physician." Utah R. Evid. 506(b). However, the scope of this privilege is not absolute. See Burns, 2006 UT 14, ¶ 15, 133 P.3d 370. The rules of evidence "govern proceedings in the courts of this State," Utah R. Evid. 101, and they specifically exempt "a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which that condition is an element of any claim or defense." Id. 506(d)(1).

¶ 10 Furthermore, a plain reading of rule 506(d)(1) clearly limits the breadth of the exception to the privilege to the confines of the court proceedings. Further, a waiver under rule 506(d)(1) does not mean that the patient has consented to the disclosure of his entire medical history. Rule 506 is only broad enough to allow the disclosure of information relevant to an element of any claim or defense. Therefore, rule 506(d)(1) is a limited waiver of privilege, confined to court proceedings, and restricted to the treatment related to the condition at issue.


¶ 11 Dr. Barbuto argues the court of appeals' decision below creates a new fiduciary duty in physicians that is beyond the scope of rule 506 privilege. We note at the outset that a physician's duty of confidentiality is different and distinct from the physician-patient testimonial privilege in rule 506. These two zones of protection for patient records and disclosures are not coextensive, even though they often overlap. Rule 506 governs the dissemination of information as part of a court proceeding. The duty of confidentiality is not similarly restricted and serves a broader purpose.

¶ 12 A physician's duty of confidentiality encompasses the broad principle that prohibits a physician from disclosing information received through the physician-patient relationship. The duty is rooted in the ethical underpinnings of this relationship and serves to prevent a physician from disclosing sensitive medical information to any third party. It arises from the understanding that good medical care requires a patient's trust and confidence that disclosures to physicians will be used solely for the patient's welfare and that a patient's privacy with regard to those disclosures will be respected and protected.

¶ 13 Rule 506's privilege operates to some extent as a subsection of a physician's duty of confidentiality. While rule 506(d)(1) provides a judicial exception to privilege that permits disclosure of confidential information that has been placed at issue in litigation, it does not thereby vitiate the entirety of the physician's duty of confidentiality. This duty remains intact in litigation and continues to prevent a physician from disclosing confidential information to a patient's friends, family, employers, or any other third party.

¶ 14 Contrary to Dr. Barbuto's argument, the court of appeals did not create a new duty for physicians to follow. In Debry v. Goates, the court of appeals clearly recognized a duty of confidentiality that extends beyond rule 506's evidentiary privilege. 2000 UT App 58, 1128, 999 P.2d 582. Specifically, Debry states, "As part of a therapeutic relationship, a doctor or therapist has an obligation to protect the confidentiality of his patients that transcends any duty he has as a citizen to voluntarily provide information that might be relevant in pending litigation." Id.

¶ 15 What was new about the court of appeals' decision in this case was that the court employed the term "fiduciary" in discussing a physician's duty of confidentiality. Sorensen v. Barbuto, 2006 UT App 340, ¶ 16, 143 P.3d 295 ("[E]x parte communication between a physician and opposing counsel constitutes a breach of the...

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