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Carson v. Fine2/10/1994
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Moreover, contrary to the plaintiff's position here, we find that neither the statute nor Washington case law supports a distinction between opinion and factual evidence when determining the applicability of the privilege or its waiver. The Court of Appeals declined to draw a distinction between fact and opinion evidence offered by treating physicians in Estate of May v. Zorman, 5 Wash. App. 368, 487 P.2d
270 (1971). "In a malpractice action, the opinion of the treating physician is or may be an 'operative fact.' . . . Questions designed to elicit information regarding his treatment of the patient are pertinent and proper whether they call for an expression of opinion or fact." Zorman, at 369. More recently, the Court of Appeals held that opinion testimony offered by a treating physician was admissible to counter the plaintiff's claims of medical malpractice in Peters v. Ballard, 58 Wash. App. 921, 930, 795 P.2d 1158, review denied, 115 Wash. 2d 1032 (1990). 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.
Plaintiff's argument that we draw such a distinction has similarly been rejected by other jurisdictions. See Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987). In Cates, the lower court had found that while the medical malpractice plaintiffs had waived the physician-patient privilege regarding information obtained by their treating physicians in the course of treatment and diagnosis, the waiver did not automatically extend to opinion testimony offered by these physicians. Cates, at 13. On review, the Supreme Court rejected the notion of a "divisible waiver", noting initially that North Carolina protects the physician-patient relationship by statute. Cates, at 13. In strictly construing the statutory privilege, as the court was required to do, it found no basis for allowing a patient to waive his privilege as to information gained by his physician while maintaining it as to his physician's opinions. "A patient who discloses that which he has a right to keep confidential loses the right to claim the statute's protection." Cates, at 16. The court also declined to adopt the "divisible waiver" because of its possible misuse by plaintiffs in personal injury actions:
A divisible waiver could enable plaintiffs to elicit from their physicians factual details underlying their cases and then preclude these physicians from placing this information in a
legally relevant context. When a patient dissolves the fiduciary relationship with his physician by disclosing or permitting disclosure of details of their consultations, he should not, in fairness, be allowed to prevent the physician from stating an opinion which might aid the trier of fact in assessing the merits of the patient's case. To hold otherwise would enable patients to use the privilege not defensively to protect their confidences but offensively to suppress the truth in litigation.
Cates, at 16.
The District of Columbia Court of Appeals cited Cates and reached a similar result in Richbow v. District of Columbia, 600 A.2d 1063, 1069 (D.C. 1991). "Having waived the privilege as to factual information, a plaintiff may not keep from the factfinder the medical judgments and opinions which were derived from the treatment and which indeed shaped it." Richbow, at 1069; see also 8 J. Wigmore ยง 2390, at 861 (to call physician to stand, and examine him as w
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