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Carson v. Fine2/10/1994
ion before Loudon was decided, she did not retract her permission after learning of the decision. Only one post- Loudon contact occurred, and it consisted of defense counsel telling Dr. Duenhoelter that they could not communicate until the deposition because defense counsel was unsure of how Loudon would affect the case. Defense counsel had no ex parte contacts with Dr. Duenhoelter about the plaintiff's treatment after Loudon was filed. Thus, we agree with the trial court and the Court of Appeals that the Loudon rule against ex parte contacts was not violated in this case.
Our resolution makes it unnecessary to address the remaining issues raised by the parties and by amicus curiae. Accordingly, we affirm and reverse in part the decision of the Court of Appeals. The judgment of the trial court in favor of the defendant is affirmed.
Disposition
Holding that the plaintiff had waived the physician-patient privilege, that the treating physician could testify as to his opinion, and that the admission of the treating physician's testimony was not unfairly prejudicial, the court reverses the decision of the Court of Appeals and reinstates the judgment.
Johnson, J. (dissenting)
The determinative issue here is not waiver of the physician-patient privilege as discussed by the majority at length. The key issue concerns the fiduciary relationship between doctors and their patients which underlies both the legislative and judicial protection afforded to this relationship. This fiduciary relationship is broader than the statutorily defined code of confidentiality and includes a duty to act consistent with the best interests of the patient. The extent to which we will permit the legal search for truth to harm this fiduciary relationship is the key question in this case. Where, as is the case here, alternative testimony is available to the defense, the fiduciary nature of this relationship should bar physicians from giving opinion testimony on standards of care in their patients' cases.
The grave risk of prejudice inherent in this kind of testimony provides further reason why this type of opinion testimony should not be permitted. I disagree with the majority's conclusion that this kind of testimony does not unfairly prejudice the plaintiff. The majority fails to recognize the overwhelming effect on a jury when a patient/litigant's own doctor casts his or her allegiance with the defense and states, in effect, my patient has no case. Jurors are inclined to give great weight to a treating physician's testimony because they recognize the special nature of a physician-patient relationship. Yet expert testimony regarding another physician's standard of care is not based on information gained through this relationship and consequently should not be accorded extra weight. Because the majority's holding fails to recognize and protect the sanctity
of the physician-patient relationship and because it sanctions unfairly prejudicial testimony, I dissent.
I
Washington's statutory physician-patient privilege provides in relevant part:
physician or surgeon or osteopathic physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient . . . .
RCW 5.60.060(4). As the majority correctly notes, " s a statute in derogation of common law, RCW 5.60.060(4) is to be construed strictly, and limited to its purposes". Majority, at 213 (citing Department of Social & Health Servs
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