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Carson v. Fine2/10/1994
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One purpose of the statutory privilege is to surround patient-physician communications with a "cloak of confidentiality" to promote proper treatment by facilitating full disclosure of information. Latta, at 819; Boehme, at 635. Another purpose of the privilege is to protect the patient from embarrassment or scandal which may result from revelation of intimate details of medical treatment. Latta, at 819; Boehme, at 636.
[3, 4] As a statute in derogation of common law, RCW 5.60.060(4) is to be construed strictly, and limited to its purposes. Latta, at 819; see also Randa v. Bear, 50 Wash. 2d 415, 420, 312 P.2d 640 (1957). Indeed, the statutory privilege is now expressly limited by legislative amendment. In 1986, the Legislature amended RCW 5.60.060(4) to provide that the privilege is deemed to have been waived 90 days after the filing of a personal injury or wrongful death action. RCW 5.60.060(4)(b). The amendment is a codification of existing Washington case law which holds that waiver occurs even without plaintiff's express consent. Specifically, this court has held that the introduction by the patient of medical testimony describing the treatment and diagnosis of an illness waives the privilege as to that illness, and the patient's own testimony to such matters has the same effect. Randa, at 421; McUne v. Fuqua, 42 Wash. 2d 65, 76, 253 P.2d 632 (1953).
Other authorities agree that a patient voluntarily placing his or her physical or mental condition in issue in a judicial proceeding waives the privilege with respect to information
relative to that condition. 1 J. Strong, McCormick on Evidence 384 (4th ed. 1992); 8 J. Wigmore, Evidence § 2389, at 855 (1961). Waiver occurs because the purpose of the privilege no longer exists.
The whole reason for the privilege is the patient's supposed unwillingness that the ailment should be disclosed to the world at large; hence the bringing of a suit in which the very declaration, and much more the proof, discloses the ailment to the world at large, is of itself an indication that the supposed repugnancy to disclosure does not exist.
8 J. Wigmore, at 855.
A waiver of this privilege as to one of plaintiff's physicians also constitutes a waiver as to other physicians who attended the plaintiff with regard to the disability or ailment at issue. McUne, at 74-76; State v. Tradewell, 9 Wash. App. 821, 824, 515 P.2d 172, review denied, 83 Wash. 2d 1005 (1973), cert. denied, 416 U.S. 985, 40 L. Ed. 2d 762, 94 S. Ct. 2388 (1974). A patient who could select among various physicians' opinions, and claim privilege as to the remainder, would make a mockery of justice. Tradewell, at 824; see also State v. Brewton, 49 Wash. App. 589, 591, 744 P.2d 646 (1987). "It is not consonant with justice and fairness to permit the patient to reveal his secrets to several doctors and then when his condition comes in issue to limit the witnesses to the consultants favorable to his claims." 1 J. Strong, at 387-88; see also 8 J. Wigmore § 2390, at 862 (to call physician as witness to one's physical condition is waiver of privilege as to other physicians' knowledge of same condition). This conclusion is now expressly set forth in RCW 5.60.060(4)(b): "Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions . . . ." (Italics ours.)
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