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Carson v. Fine2/10/1994
he treatment afforded has resulted in medical malpractice. Once a patient places his care and treatment at issue in a civil proceeding, there no longer remains any restraint upon a doctor in the release of medical information concerning the patient within the parameters of the complaint. To hold otherwise would allow a patient to restrain a doctor who possesses the most relevant information and opinions from responding to inquiries as to such information or giving such opinions without a written authorization, court order or subpoena.
Orr, at 679-80, quoted in Torres, at 186-87. The Orr court recognized that the Hippocratic Oath taken by all doctors honors the confidentiality of information obtained from a patient. Orr, at 678. The court reasoned that once a patient files a complaint placing in issue the nature and quality of medical treatment, however, he or she waives the qualified right to privacy implicit in the Hippocratic Oath. Orr, at 679.
Once the plaintiff has waived the physician-patient privilege by filing a medical malpractice action, he or she may not object to a treating physician's testimony on the premise that the fiduciary relationship between physician and patient creates an additional restriction on the physician's testimony. "Absent a privilege no party is entitled to restrict an opponent's access to a witness, however partial or important to him, by insisting upon some notion of allegiance." Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983); Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 551 (D.C. 1981); 8 J. Wigmore ยง 2192. While we acknowledge some authority to the contrary, we do not see the fiduciary nature of the physician-patient relationship as justification for restricting access to a treating physician's opinions. See Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (1984) (fiduciary nature of the relationship precludes physician from testifying against his patient); but see Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 536 A.2d 332 (1987) (treating physician's adverse testimony admissible because physician-patient privilege waived by placing physical condition at issue).
The third reason given by the Court of Appeals for requiring a trial court to make a record of its admission of a treating physician's adverse testimony was the inherent prejudice of such testimony. The court described the "potential danger" in a treating physician testifying for the defense as follows:
Because doctors are viewed as owing broadly defined duty of loyalty to their patients, jurors are likely to perceive expert testimony adverse to a patient as a betrayal. The prejudice occurs when the jury, seeking to reconcile this breach of the trust relationship, concludes, without careful scrutiny of the testimony, that the patient's case is clearly without merit.
This sort of bias against a party meets the definition of ER 403 prejudice -- deciding a case on an improper basis rather than on a careful evaluation of the evidence.
Carson, at 465-66. The court supported its requirement of an on-the-record ER 403 balancing of a treating physician's adverse testimony by pointing out that a similar balancing is required when evidence of prior misconduct and prior convictions -- evidence which it viewed as involving a similarly high risk of unfair prejudice -- is sought to be admitted under ER 404 and ER 609. See Carson, at 463-64.
Under ER 609(a)(1), a prior felony conviction for an offense not involving dishonesty or false statement is admissible only if the trial court first determines that the pr
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