Turncoat Doctors (Continued from page 5)
implicit consent, however, is obvi- ously and necessarily limited; he does not consent, simply by filing suit, to his physicians discussing his medical confidences with third par- ties outside court authorized discovery methods, nor does he consent to his physicians discuss- ing the patient’s confidences in an ex parte conference with the patient’s adversary.
Kitzmiller, 437 S.E.2d at 454-455. The Kitzmiller decision addresses only
ex parte communications, and expressly states that a treating health care provider may testify as to the care and treatment afforded to the plaintiff, but only in the context of formal discovery methods.7 This decision raises a number of interest- ing issues regarding the relationship between physician and patient, and issues of fiduciary duty, waiver and ethics.
The Physician’s Fiduciary Duty to the Patient
As stated in the Kitzmiller decision, the
courts of most jurisdictions recognize that the position of trust occupied by a physi- cian relative to his patient creates a fiduciary duty owed by the physician to the patient.8
As one court has stated,
7 See, id. at 457. 8 See, id. at 454.
[w]e are of the opinion that mem- bers of a profession, especially a medical profession, stand in a con- fidential or fiduciary capacity as to their patients. They owe their pa- tients more than just medical care for which payment is exacted; there is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render re- ports when necessary, and to attend court when needed. That further includes a duty to refuse affirma- tive assistance to the patient’s antagonist in litigation. The doc- tor, of course, owes a duty to conscience to speak the truth; he need, however, speak only at the proper time.
Company, 243 F. Supp. 793, 799 (N.D. Ohio, 1965).
Hammond v. Aetna Casualty & Surety In recognizing the exist-
ence of a fiduciary duty on the part of the physician to the patient, courts, as a mat- ter of public policy, place a duty on the physician “to exercise the utmost good faith” and “act in the best interests of his patient so as to protect the sanctity of the physician-patient relationship while, at the same time, complying with court au- thorized discovery.” Duquette v. Superior Court, 778 P.2d 634, 640, 161 Ariz. 269 (Ariz. App. 1989). Under the Hammond and Duquette analyses, the proper time for the physi- cian to speak is in the context of formal methods of discovery such as deposition.
Discussion of the patient’s confi- dences under any other
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See, McCormick v. England, 494 S.E.2d 431, 435, n.4 (S. Ct.1997)
Summer 2002
circumstances, such as the ex parte conference, could be inconsistent with the duties of a fiduciary, for the physician would, in effect, en- gage in conduct which may be contrary to a fiduciary’s obligation of good faith and, in addition, might disclose intimate facts of the patient which are unrelated and ir- relevant to the mental or physical condition placed at issue in the law- suit. Consequently, the ex parte conference involves contact which could be violative of the duties of a fiduciary and would, therefore, be contrary to the public policy favor- ing the fiduciary nature of the physician-patient relationship.
at 640.
Duquette v. Superior Court, 778 P.2d The corollary to that point is
that, if the physician is bound by his duty to his patient to refrain from offering af- firmative assistance to the patient’s adversary if called to testify by the adver- sary, the physician’s deposition testimony is, of necessity, limited to that of a treat- ing health care provider, i.e., testimony as to the facts and basis of treatment and as to opinions formulated during the course of treatment.
Many courts … have recognized the unfairness of permitting a party to employ a physician who treated an injured party to provide testi- mony beyond simply the care of the plaintiff [and extending to] classic expert opinion regarding causation and prognosis.
Sullivan v. Glock, Inc., 175 F.R.D. 497, 501 (D. Md. 1997) (quoting Thomas v. Consolidated Real Corp., 169 F.R.D. 1, 2 (D. Mass. 1996)) (considering the status of “hybrid” medical witnesses under the Federal Rules of Civil Procedure). A number of jurisdictions have recog-
nized an independent cause of action against a physician for breach of fiduciary duty as well as other independent torts based on a physician’s wrongful disclosure of information concerning the patient.9 While limited in some circumstances by privileges accorded to testimony in judi- cial proceedings, the recognition of such causes of action constitutes a strong state- ment that ex parte communication between a physician and his patient’s ad- versaries is contrary to public policy and should be condemned.
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