State v. Wilson

• Decision Date: 31 May 2001
• Docket Number: No. 2 CA-CR 00-0054.,2 CA-CR 00-0054.
• Parties: The STATE of Arizona, Appellant, v. Thomas Harold WILSON, Appellee.
• Court: Arizona Court of Appeals

26 P.3d 1161

200 Ariz. 390

The STATE of Arizona, Appellant, v. Thomas Harold WILSON, Appellee.

No. -0054.

Court of Appeals of Arizona, Division Two, Department A.

May 31, 2001.

As Corrected June 18, 2001.

Barbara LaWall, Pima County Attorney, By Elizabeth Tyszko, Tucson, for Appellant.

Hirsh, Bjorgaard & Rogers, P.L.C., By Jeffrey J. Rogers, Tucson, for Appellee.

OPINION

PELANDER, J.

¶ 1 After having this case against defendant/appellee Thomas Wilson dismissed without prejudice, the state appeals from the trial court's prior ruling, based on the physician-patient privilege (the privilege), that excluded evidence the state deems critical. We affirm.

BACKGROUND

¶ 2 The state charged Wilson with fraudulent scheme and artifice and theft by misrepresentation for allegedly having filed and pursued a fraudulent claim for workers' compensation benefits against the City of Tucson during his employment with the Tucson Police Department. The indictment was based largely on alleged discrepancies between Wilson's complaints to physicians of certain physical limitations and various activities in which Wilson engaged, as depicted in surveillance videotapes obtained by the City. The state filed a motion for a ruling relating to Wilson's assertion of the privilege, contending the privilege did not preclude testimony from five physicians who had "treated [Wilson] as part of his Workers' Compensation claim." The trial court largely denied the motion, precluding the state from calling all but one physician, Dr. Krasner, who, the state claimed, had seen Wilson for an independent medical examination (IME) rather than as a treating physician.

¶ 3 Wilson subsequently moved for reconsideration of the ruling relating to Krasner and for an in limine ruling that, even if he theoretically could have waived the privilege as to that physician, the facts did not support a finding of waiver here. After a hearing at which counsel argued, introduced several exhibits, and made certain avowals, the trial court ruled in Wilson's favor, stating it could not find "a waiver of the doctor-patient privilege from the evidence presented." This appeal followed the trial court's denial of the state's motion for reconsideration and dismissal of the case without prejudice on the state's motion.

DISCUSSION

¶ 4 The state only challenges the trial court's preclusion of Krasner's testimony,¹ arguing that the privilege does not apply to him or, alternatively, that Wilson impliedly waived the privilege. The question of whether a privilege exists is generally a legal question that is subject to our de novo review. See, e.g., State v. Santeyan, 136 Ariz. 108, 664 P.2d 652 (1983)

; Blazek v. Superior Court, 177 Ariz. 535, 537, 869 P.2d 509, 511 (App.1994); cf. State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, ¶ 12, 13 P.3d 1169, ¶ 12 (2000) (although trial court has broad discretion in ruling on a party's assertion of privilege, that discretion does not permit misapplication of law or a ruling predicated on irrational bases). We also review de novo the question of whether a party has waived a privilege, Home Indemnity Co. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir.1995), unless that question hinges on resolution of conflicting facts or witness credibility issues. Cf. State v. Steelman, 120 Ariz. 301, 317, 585 P.2d 1213, 1229 (1978). Finally, to the extent the state's argument requires interpretation of statutes, we review such issues de novo. State v. Leon, 197 Ariz. 48, ¶ 2, 3 P.3d 968, ¶ 2 (App.1999).

¶ 5 Section 13-4062(4), A.R.S., provides that a physician or surgeon shall not be examined as a witness "without consent of the physician's or surgeon's patient, as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient." "Because there was no such privilege at common law, the statute must be strictly construed." State v. Morales, 170 Ariz. 360, 363, 824 P.2d 756, 759 (App.1991). The privilege is primarily intended to protect "communications made by the patient to his physician for the purpose of treatment," Santeyan, 136 Ariz. at 110, 664 P.2d at 654, so as "to insure that the patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor." Lewin v. Jackson, 108 Ariz. 27, 31, 492 P.2d 406, 410 (1972).

¶ 6 For the privilege to apply, four elements must exist: (1) the patient must not consent to the proffered testimony; (2) the witness must be a physician or surgeon; (3) the information must have been imparted while the physician was attending the defendant; and (4) "`the information must be necessary to enable the physician to prescribe or act for the treatment of the defendant.'" Morales, 170 Ariz. at 363, 824 P.2d at 759, quoting State v. Beaty, 158 Ariz. 232, 239, 762 P.2d 519, 526 (1988)

. Only the fourth element is at issue here.

I. Does Alleged Purpose of Visiting Physician Render Privilege Inapplicable?

¶ 7 The state first asserts generally that the privilege does not preclude Krasner's testimony because Wilson did not consult or communicate with him "for the purpose of treatment because there was no injury to treat." Rather, the state argues, Wilson visited all the doctors "for the purpose of pecuniary gain," through the filing and pursuing of "a false Worker's Compensation claim." We do not find these arguments persuasive.

¶ 8 Even if a patient has an underlying financial motive or goal in seeking treatment, that does not necessarily mean information divulged by the patient is not "necessary to enable the physician ... to prescribe or act for the patient." § 13-4062(4). That is to say, a patient may trigger the privilege by consulting with a physician even though the patient has ulterior motives in seeking or obtaining treatment. See People v. Sinski, 88 N.Y.2d 487, 646 N.Y.S.2d 651, 669 N.E.2d 809, 813 (1996)

("any communications between defendant and his doctors in furtherance of his treatment were obtained in violation of defendant's physician-patient privilege and improperly admitted at trial," despite charge that defendant had obtained prescriptions for narcotic pain medications by fraud and deceit).

¶ 9 Moreover, the state's argument rests on the premise that Wilson committed workers' compensation fraud, a charge that, as yet, is unproven. In essence, the state's position begs the question by implicitly assuming that Wilson's consultation with Krasner and the other physicians constituted fraud.² That assumption, however, cannot justify disregarding the privilege in order for the state, in bootstrap fashion, to obtain evidence it allegedly needs to prove that the assumption is accurate. In the absence of any supporting authority, we reject as overbroad the state's apparent contention that public policy automatically justifies an abrogation of the privilege whenever a patient merely has been charged with fraud in making or pursuing a workers' compensation claim. See Mutual of Omaha Ins. Co. v. American Nat'l Bank & Trust Co., 610 F.Supp. 546 (D.Minn.1985)

(privilege applied to bar psychiatrist records that insurance company sought in order to prove fraudulent scheme to procure insurance policies); Sinski; cf. State v. Elwell, 132 N.H. 599, 567 A.2d 1002, 1007 (1989) ("A criminal defendant does not put his medical condition at issue simply by proclaiming his innocence. To hold otherwise would allow the State to defeat the physician-patient privilege simply by accusing a defendant of a crime. We do not believe the legislature intended that result.").

¶ 10 Citing Benton v. Superior Court, 182 Ariz. 466, 897 P.2d 1352 (App.1994), the state contends "[t]he public's interest in protecting victims outweighs the privacy interest protected by the privilege." Although we do not necessarily disagree with that general proposition or its application in Benton, it does not justify elimination of Wilson's privilege here. In Benton, an uncooperative victim/witness of a domestic violence incident attempted to preclude the state from obtaining her medical records in its case against the defendant/abuser, who was charged with aggravated assault and burglary. Division One of this court held that "the State may, without the permission of a victim, obtain the victim's medical records when such records are needed for the prosecution of a criminal case." Id. at 467, 897 P.2d at 1353. Unlike this case, Benton involved unique concerns peculiar to domestic violence cases, in which "it is not unusual that a victim does not wish to cooperate with the prosecution." Id. at 469, 897 P.2d at 1355. More importantly, Benton addressed the victim's privilege, not the defendant's. See State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548, 551-52 (1964) (physician's testimony as to shooting victim's condition not barred by privilege in criminal trial).

¶ 11 As the court in Benton noted, "the physician-patient privilege has never been absolute." 182 Ariz. at 469,897 P.2d at 1355. In addition to the legislature's creation of various statutory exceptions,³ "[t]he judiciary has also imposed some limitations" on that privilege, id.; and Arizona courts have recognized a "crime-fraud exception to the attorney-client privilege." Id. at 470, 897 P.2d at 1356. See also Pearce v. Stone, 149 Ariz. 567, 572, 720 P.2d 542, 547 (App.1986)

("[T]he attorney-client privilege is defeated by a showing of prima facie fraud on the part of the client."); Buell v. Superior Court, 96 Ariz. 62, 68, 391 P.2d 919, 924 (1964); State v. Fodor, 179 Ariz. 442, 450, 880 P.2d 662, 670 (App.1994). But, neither our legislature nor supreme court has created or recognized any "crime-fraud exception" to the physician-patient privilege, particularly when a criminal defendant is asserting the privilege. The state's mere charge of fraud against Wilson and its alleged need for the otherwise privileged evidence at issue, in...