452 (
W.Va. 1993) is of interest to attor- neys representing Maryland plaintiffs. In Kitzmiller, the plaintiff in a medical mal- practice action petitioned for a writ of prohibition to bar enforcement of an or- der permitting defense counsel’s ex parte communications with plaintiff’s treating physicians. Plaintiff ’s medical malprac- tice action alleged that the defendants were negligent in failing to diagnose and treat her deceased husband’s colon can- cer. Defendants requested that plaintiff sign medical release authorizations allow- ing ex parte interviews with subsequent treating physicians. Plaintiff refused to execute the authorizations and, instead, provided defendants with medical release authorizations specifically excluding per- mission for ex parte contacts. Defendants moved for an order compelling plaintiff to execute a medical authorization allow- ing ex parte communications with the treating health care providers. Defendants argued that West Virginia’s lack of a codi- fied physician/patient privilege negated the existence of a confidential physician/ patient relationship and thereby made ex parte communications completely proper. The defendants also alleged that by plac- ing the decedent’s medical condition at issue, plaintiff had waived any physician/ patient privilege that might otherwise have existed. The trial court granted de- fendants’ motion and plaintiff
immediately appealed via petition for a writ of prohibition to preclude enforce- ment of the circuit court’s order. Awarding the writ of prohibition, the court held that the absence of a statuto- rily created physician/patient privilege was not dispositive of the issue at hand in light of the well recognized fiduciary relation- ship existing between physician and patient. In other words, the confidential nature of the doctor/patient relationship exists independent of statutory codifica- tion.4
In holding, as a matter of first
impression in West Virginia, that a phy- sician owes the patient a fiduciary obligation, the Court stated that
[a]lthough we have not had occa- sion to address the fiduciary nature of the physician/patient relation- ship, all reported cases dealing with this point hold that a fiduciary re- lationship exists between the physician and a patient.
Kitzmiller, 437 S.E.2d at 454. The
Court cited the American Medical Association’s Code of Medical Ethics in support of the conclusion that a relation-
5 4
State ex rel. Kitzmiller v. Henning, 437 S.E.2d at 454.
6
ship of trust exists between physician and patient.
The [patient’s] confidences . . . should be held as a trust and should never be revealed except when im- peratively required by the laws of the State.5
Based on the above, the Court held
that ex parte communications between de- fense counsel and treating health care providers would undermine the confiden- tial nature of the physician/patient relationship.6
As to defendants’ argument that plain- tiff had waived any expectation of confidentiality by filing suit, the Court stated that
[i]t is well settled that when a pa- tient files a lawsuit in malpractice, he impliedly consents to a physician’s releasing medical infor- mation relating to the condition he has placed at issue. The patient’s
(Continued on page 6)
Principles of Medical Ethics of A.M.A., ch. II, sec. 1 (1943).
State ex rel. Kitzmiller v. Henning, 437 S.E.2d at 455.
Summer 2002
Trial Reporter
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