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Carson v. Fine2/10/1994
itness to one's physical condition formerly communicated to him, is waiver of privilege in regard to all knowledge of condition). This waiver applies to treating physicians whether called by plaintiff or the defense.
We conclude that a plaintiff's waiver of the physician-patient privilege extends to all knowledge possessed by the plaintiff's doctors, be it fact or opinion. There is no basis in reason, the common law, or in statutory law to draw a distinction between the types of testimony a treating physician may offer once the physician-patient privilege has been waived, nor does the specific waiver executed in this case draw such a distinction. We therefore conclude that the physician-patient privilege barring Dr. Duenhoelter's opinion testimony was waived in this case.
II
Next, we consider whether the Court of Appeals effectively reinstated this privilege by requiring an extensive, on the record balancing of probative value versus prejudicial effect pursuant to ER 403 before the adverse testimony of a treating physician is deemed admissible.
ER 403 authorizes the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice". The Court of Appeals held that a trial court must balance the probative value versus the prejudicial effect of a treating physician's proposed defense testimony pursuant to this rule by evaluating the following six factors on the record: (1) whether there is a compelling need for the defense to call this particular doctor; (2) whether there are alternative experts available; (3) the likelihood that the testifying physician is basing the opinion in part upon information obtained from the patient; (4) whether the physician-patient privilege is ongoing; (5) whether the plaintiff needs to call the doctor to establish damages; and (6) whether the condition treated is the same or similar to the condition at issue in the lawsuit. Carson, 67 Wash. App. at 466. The court decided that careful scrutiny of the trial court's rationale for admitting a treating physician's testimony as a defense expert was required because of the inherent prejudice of such testimony, because such testimony is damaging to the fiduciary doctor-patient relationship, and because of the risk of causing the doctor to disclose, in the course of offering expert testimony, confidential medical information obtained in treatment. Carson, 67 Wash. App. at 466-67.
In discussing the possible disclosure of confidential information, the Court of Appeals stated that it would be unfair and very risky to rely on the treating physician to distinguish testimony based on privileged information from that based on prior training and experience. Carson, 67 Wash. App. at 466. We see no such risk or unfairness because, as stated earlier, the physician-patient privilege has been waived by the time a treating physician is called to testify in a medical malpractice action. Thus, whatever information the treating physician properly relied upon in reaching his or her opinion regarding the medical condition at issue cannot be privileged. Moreover, any concern regarding potential disclosures of extraneous, irrelevant medical information can be controlled by plaintiff's motions in limine or
by objections on the basis of relevancy. We do not see that the risk of disclosing irrelevant medical information warrants special scrutiny of the trial court's admission of adverse testimony by a treating physician.
We turn next to the Court of Appeals' concern that such testimony will damage the fiduciary doctor-patient rela
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