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Carson v. Fine2/10/1994
. v. Latta, 92 Wash. 2d 812, 819-20, 601 P.2d 520 (1979)). By its very words, the statute is limited in scope to information acquired by a physician, "which was necessary to enable him or her to prescribe or act for the patient". RCW 5.60.060(4). Yet the majority, ignoring its own analysis, stretches the scope of the statutory privilege to include both factual testimony and opinion testimony, and concludes both were waived in this case. The majority explains:
We also observe that neither the waiver in RCW 5.60.060(4) nor the order voluntarily entered into by plaintiff in this case distinguishes between fact and opinion evidence. Both fully waive the physician-patient privilege without regard to the type of testimony offered by a treating physician.
Majority, at 215. This analysis is off the mark. The statutory waiver provision provides:
Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules.
RCW 5.60.060(4)(b). Like the statutory privilege itself, the statutory waiver does not include expert testimony. Notwithstanding the majority's observations, the plaintiff did
not expressly distinguish between fact and expert testimony because expert testimony does not fall within the scope of the statute. Similarly, the order signed by the plaintiff, permitting interviews with her treating physicians, waives the physician-patient privilege. Since there exists no common law right to claim a physician-patient privilege, Latta, 92 Wash. 2d at 819, the order could only have waived the statutory privilege. And the statutory privilege simply does not apply to the testimony at issue in this case.
But while the statutory privilege does not apply, a physician's fiduciary duty to his or her patient can prevent a doctor from acting adversely to the patient's interests. In Loudon v. Mhyre, 110 Wash. 2d 675, 756 P.2d 138 (1988), we recognized a broad public policy interest in protecting the physician-patient relationship that extends beyond the statutory protection afforded by RCW 5.60.060(4). Faced with the question whether defense counsel may engage in ex parte contacts with a plaintiff's physicians, we explored the nature of the physician-patient relationship after a patient has waived the statutory privilege against confidential communication. Holding that defense counsel is prohibited from engaging in ex parte contacts with a plaintiff's physicians, we explained:
The mere threat that a physician might engage in private interviews with defense counsel would, for some, have a chilling effect on the physician-patient relationship and hinder further treatment. The relationship between physician and patient is "a fiduciary one of the highest degree . . . involv every element of trust, confidence and good faith."
Loudon, 110 Wash. 2d at 679 (quoting Lockett v. Goodill, 71 Wash. 2d 654, 656, 430 P.2d 589 (1967)). We further found "it difficult to believe that a physician can engage in an ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient." Loudon, 110 Wa
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