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Carson v. Fine2/10/1994
At issue is the admissibility of adverse opinion evidence offered by a treating physician against the plaintiff, his former patient in a malpractice action filed against another physician. In this case, the Court of Appeals reversed the defendant's jury verdict and held that the trial court should have balanced, on the record, the probative value of the proposed adverse testimony against the danger of its unfair prejudice under ER 403 before admitting the testimony. We granted review and now reverse the Court of Appeals.
Facts
On August 8, 1985, Carmen Carson (hereafter referred to as the plaintiff) gave birth to her first child. Dr. Betsy Fine, a family practitioner, delivered the baby. Dr. Fine (hereafter referred to as the defendant) performed an episiotomy during the delivery. The incision developed into a fourth degree laceration which the defendant attempted, unsuccessfully, to repair.
Plaintiff subsequently consulted Dr. Gordon Klatt about the laceration. Dr. Klatt diagnosed a rectovaginal fistula, an abnormal passage leading from one abscess cavity or organ to another. He attempted repair surgery, but was also unsuccessful. Plaintiff then consulted Dr. Aaron Kemp, who performed a third repair procedure in June 1986. Although the operation improved plaintiff's condition, she continued to suffer from incontinence. In July 1986, plaintiff and her husband sued the defendant and Dr. Klatt. The suit against Dr. Klatt was later dismissed.
In July 1987, plaintiff, pregnant with her second child, began seeing Dr. Johann Duenhoelter for prenatal care. Dr. Duenhoelter was aware of plaintiff's condition and delivered the second child by caesarean section in January 1988.
In connection with her lawsuit, plaintiff agreed to an order waiving her physician-patient privilege with regard to all physicians who had provided her care or treatment, except for four experts consulted in anticipation of litigation. The order further provided that the defense could conduct ex parte interviews with her treating physicians. At the time of the order, Dr. Duenhoelter was one of plaintiff's treating physicians. At an ex parte interview, he opined that the defendant's conduct was not negligent and was within the standard of care. The defense listed Dr. Duenhoelter as an expert witness and took his deposition, where he repeated that the defendant had not acted negligently in treating the plaintiff.
Prior to the deposition of Dr. Duenhoelter, this court issued Loudon v. Mhyre, 110 Wash. 2d 675, 756 P.2d 138 (1988). In Loudon, this court held that a plaintiff-patient's
waiver of the physician-patient privilege does not authorize ex parte communications between the defendant and the plaintiff's treating physicians. The court thus prohibited ex parte interviews between a plaintiff's physicians and defense counsel. Loudon, at 682.
In a pretrial motion, plaintiff argued for the exclusion of Dr. Duenhoelter's expert testimony, contending that the physician-patient privilege and the fiduciary relationship between doctor and patient should prohibit a treating physician from testifying as an expert witness against his or her patient, and also claiming that Dr. Duenhoelter had had ex parte contacts with the defense in violation of Loudon. Plaintiff also asked the trial court to exclude the doctor's testimony, under ER 403, as cumulative and unfairly prejudicial. The trial court denied the motion and Dr. Duenhoelter testified for the defense. The jury found no negligence on the defendant's part.
Plaintiff appealed and argued that Dr. D
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