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Carson v. Fine2/10/1994
tionship. Pursuant to this relationship, it is the duty of the physician to exercise the utmost good faith in dealing with his or her patient. B. Shartel & M. Plant, Medical Practice § 4-03, at 172 (1959); Foster v. Brady, 198 Wash. 13, 18, 86 P.2d 760 (1939). The relationship is predicated on the proposition that the physician has special knowledge and skill in diagnosing and treating diseases and injuries and that the patient has sought and obtained the services of the physician because of this expertise. 70 C.J.S. Physicians and Surgeons § 58, at 449 (1987); 61 Am. Jur. 2d Physicians, Surgeons and Other Healers § 167, at 298-99 (1981). Mutual trust and confidence are essential to the physician-patient relationship, and from these elements flow the physician's obligations to fully inform the patient of his or her condition, to continue to provide medical care once the patient-physician relationship has been established, to refer the patient to a specialist if necessary, and to obtain the patient's informed consent to the medical treatment proposed. 61 Am. Jur. 2d § 167, at 299; 70 C.J.S. § 58, at 448-49.
Rather than viewing the statutory physician-patient privilege as separate from the obligations imposed by the fiduciary relationship, we believe that the testimonial privilege created by the Legislature is simply the legal acknowledgment of those fiduciary duties. We do not see that the fiduciary obligations outlined above create a new or different basis for restricting a physician's testimony in court. In fact, the American Medical Association places upon physicians a duty to assist in the administration of justice. American Medical Association Principles of Medical Ethics § 9.07, at 81 (1981) (AMA Ethics). In providing such assistance, the physician "must not become an advocate or partisan in the legal proceeding. The medical witness
should be adequately prepared and should testify honestly and truthfully." AMA Ethics § 9.07, at 82.
In short, a physician's duties toward a patient, including the requirement of confidentiality, focus upon medical treatment and medical advice, and do not encompass legal advocacy, whether measured by testimony or a refusal to testify. Once a patient decides to file a medical malpractice action and disclose that which had been confidential, she cannot insist on continued confidentiality from her physicians regarding the condition at issue based on the fiduciary nature of their relationship. This conclusion finds support in Cates :
When . . . the patient breaks the fiduciary relationship with the physician by revealing, or permitting revelation of, the substance of the information transmitted to the physician, the patient has, in effect, determined it is no longer important that the confidences which the privilege protects continue to be protected. Having taken this position, the plaintiff may not silence the physician as to matters otherwise protected by the privilege.
Cates, at 15. The California Court of Appeal similarly held that the fiduciary duty created through the physician-patient relationship does not preclude adversarial testimony by a treating physician in Torres v. Superior Court, 221 Cal. App. 3d 181, 270 Cal. Rptr. 401 (1990). The court so held after citing the following language from Orr v. Sievert, 162 Ga. App. 677, 292 S.E.2d 548 (1982):
e discern no restraint upon a doctor who has entered into a patient-doctor relationship and treated a patient from rendering an appropriate opinion as to the nature and quality of treatment afforded the same patient for the same course of illness by another physician where contention has arisen that t
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