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Carson v. Fine2/10/1994
uenhoelter violated his fiduciary duty and the physician-patient privilege by offering adverse opinion testimony, that his testimony was cumulative and unfairly prejudicial under ER 403, and that the trial court should have excluded Dr. Duenhoelter's testimony because Loudon prohibited ex parte contacts as a matter of law.
The Court of Appeals held that the physician-patient privilege did not bar the plaintiff's treating physician from testifying as a defense expert and that Dr. Duenhoelter's testimony did not violate the rule against ex parte contacts in Loudon. Carson v. Fine, 67 Wash. App. 457, 462, 836 P.2d 223 (1992). The court noted that plaintiff had specifically waived any privilege and had permitted ex parte contacts by entering into the agreed order. Carson, at 462. The Court of Appeals also explained that the fact that the defense already had an expert to testify regarding standard of care did not mean that Dr. Duenhoelter's testimony was needlessly cumulative. The court noted, moreover, that the admission of cumulative evidence is not prejudicial error. Carson, at 462-63.
Nevertheless, the Court of Appeals reversed. It held that, under ER 403, the nature of the treating physician's defense testimony required the court to weigh the probative value of such testimony against the danger of unfair prejudice on the record for purposes of appellate review. Carson, at 467. The court set forth six factors that the trial court should have considered before allowing the plaintiff's treating physician to testify on behalf of the defense. Carson, at 466. Since the trial court had failed to evaluate these factors on the record, the Court of Appeals lacked the basis to review whether the evidence had been properly admitted. Thus, the Court of Appeals reversed and remanded so that the trial court could consider the six factors it proposed before admitting Dr. Duenhoelter's testimony. Carson, at 468. The defendant then sought review of the Court of Appeals' opinion, which this court granted.
Analysis
I
In her petition for review, the defendant argues that the plaintiff waived the physician-client privilege when she filed an action for malpractice. She alleges that the Court of Appeals then effectively reinstated the privilege by creating an insurmountable burden for the defense to overcome in order to present the adverse testimony of a treating physician. In response, the plaintiff contends that while she may have waived the physician-patient privilege with regard to any factual evidence of her medical condition, her waiver did not extend to adverse opinion evidence offered by one of her treating physicians. In evaluating these arguments it is first necessary to determine the purpose and scope of Washington's physician-patient privilege.
This privilege is set forth in RCW 5.60.060(4), and prohibits examining a physician in a civil action as to any information acquired in attending a patient without his or her consent. The privilege is a creature of statute, and thus is a procedural safeguard and not a rule of substantive or constitutional law. Department of Social & Health Servs. v.
Latta, 92 Wash. 2d 812, 819, 601 P.2d 520 (1979); State v. Boehme, 71 Wash. 2d 621, 634, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013, 20 L. Ed. 2d 164, 88 S. Ct. 1259 (1968). At common law, no testimonial privilege existed for communications or information exchanged between patient and physician. Latta, at 819; Boehme, at 634.
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