Turncoat Doctors (Continued from page 7)


bility to patients is not limited to the actual practice of medicine. They also include the performance of some services ancillary to the practice of medicine. These services might include certification that the patient was under the physician’s care and comment on the diagno- sis and therapy in a particular case.14


Once again, Section 5.08 underscores the essential requirement of patient con- sent before disclosure of not only spoken confidences, but also the patient’s history, diagnosis, prognosis and the like acquired during the physician/patient relationship. Section 5.08 is also important for its ex- press statement that the physician’s duty to the patient includes the performance of some services ancillary to the practice of medicine, and that those ancillary ser- vices to the patient include comment on diagnosis and therapy. Section 8.03 of the Current Opinions of the Council on Ethical and Judicial Af- fairs, states that:


Under no circumstances may phy- sicians place their own financial interests above the welfare of their patient. . . . If a conflict develops between the physician’s financial interest and the physician’s respon- sibilities to the patient, the conflict must be resolved to the patient’s benefit.15


Section 8.03 deals rather succinctly with the issue of whether it is ethical for a phy- sician to act as a paid medical consultant or expert on behalf of his patient’s legal adversary. In short, when a patient’s phy- sician accepts compensation for acting as a consultant or expert witness for the patient’s adversaries, that physician places his own financial interests above the wel- fare of his patient and violates the clear dictates of Section 8.03. Section 9.07 of the Current Opinions of the Council on Ethical and Judicial Af- fairs states in pertinent part that:


14


American Medical Association, Current Opinions of the Council on Ethical and Judi- cial Affairs, Section 5.08. April, 1977).


15


As a citizen and a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician’s assis- tance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.16


The first sentence of Section 9.07, standing alone, could be cited for the proposition that the “physician’s ethical obligation to assist in the administration of justice” acts to allow participation as a consultant or expert on behalf of his patient’s legal adversaries so long as he acts in good faith. However, read in context and in its entirety, Section 9.07 simply underscores the proposition that any medical evidence furnished by the physi- cian must be with the consent of the patient.


The American Medical Association’s


House of Delegates also issues statements and guidelines for its members. House of Delegates Resolution H-265.993 con- cerning peer review of medical expert witness testimony states that:


AMA policy is that: (1) the giving of medical-legal testimony by a physician expert witness is consid- ered the practice of medicine, and (2) all medical-legal expert witness testimony given by a physician should be subject to peer review.17


It would be quite incongruous if a phy- sician could engage in the practice of medicine by treating a patient while also engaging in the practice of medicine by aiding his patient’s adversaries.


Plaintiff ’s Waiver of an Expectation of Confidentiality by Placing His Medical Condition at Issue


Most states recognize that when a plaintiff places a particular medical con- dition at issue by means of a claim or affirmative defense, the plaintiff has im- pliedly waived an


expectation of 16 (Issued prior to


American Medical Association, Current Opinions of the Council on Ethical and Judi- cial Affairs, Section 8.03. (Issued July, 1986; updated June, 1994).


8 17


American Medical Association, Current Opinions of the Council on Ethical and Judi- cial Affairs, Section 9.07. (Issued June, 1986; updated June, 1996).


American Medical Association, House of Delegates Res. H-265.993 (Res. 221, I-97; reaffirmed: BOT Rep. I-98; reaffirmation A- 99).


Trial Reporter


confidentiality. However, that is not to say that the implied waiver is unqualified. Numerous courts have addressed this is- sue.


A patient certainly does not, by sim- ply filing suit, consent to his physician discussing that patient’s medical confidences with third par- ties outside court authorized discovery methods, nor does he consent to his physician discussing the patient’s confidences in an ex parte conference with the patient’s legal adversary.


Petrillo v. Syntex Laboratories, Inc, 499 N.E.2d at 959. The courts of numerous jurisdictions


have held that even where the physician/ patient privilege has been impliedly waived, the holder of the privilege waives only his right to object to discovery of pertinent medical information which is sought through the formal methods of discovery authorized by applicable rules of civil procedure.18 The medical profession’s own ethical guidelines provide a template as to which the treating physician’s actions must be judged regardless of the extent of an im- plied waiver of confidentiality.19


In that


regard, the issue of statutory privilege/ waiver is separate from the issue of the duty of confidentiality owed the patient by his physician.20


The concept of a


physician’s duty of confidentiality to his patient transcends the boundary of statu- torily created privilege, and exists notwithstanding the absence of statutory codification of the privilege.21 by the Court in Kitzmiller,


As stated


[i]n sum, we conclude that the ab- sence of a formal codified physician-patient privilege does not destroy the confidential nature of the doctor-patient relationship. By filing a malpractice suit, a patient consents only to the release of medi- cal information relevant to the condition the patient has placed at issue. Ex parte interviews are pro- hibited because they pose the danger of disclosing irrelevant


(Continued on page 11) 18 19


State ex rel. Kitzmiller v. Henning, 437 S.E.2d at 455, n.2.


Petrillo v. Syntex Laboratories, Inc., 499 N.E.2d 952.


20See, id. 21See, id.


Summer 2002


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