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Christensen v. Munsen2/10/1994
ians to testify as an expert witness for the defense. At trial, Dr. Mills testified for the defense regarding the cause of plaintiff's
glaucoma and vision loss. Dr. Mills stated that he thought the glaucoma was related more to plaintiff's pars planitis than to her steroid treatment. Before he testified, plaintiff acknowledged in an offer of proof that Dr. Mills could testify for the defense regarding medical facts acquired during the course of her treatment, but argued that adverse opinion testimony would breach his fiduciary duty toward her. Plaintiff makes the same claim here in challenging the admission of Dr. Mills' testimony.
[1, 2] We recently addressed this issue in Carson v. Fine, 123 Wash. 2d 206, 867 P.2d 610 (1994), and concluded that a treating physician may testify as to both fact and opinion in a medical malpractice action regardless of whether the physician is a defense or plaintiff's witness. Such testimony is admissible because a patient waives the physician-patient privilege upon filing a medical malpractice action. RCW 5.60.060(4)(b); Randa v. Bear, 50 Wash. 2d 415, 421, 312 P.2d 640 (1957). Once the physician-patient privilege is waived, it constitutes a waiver of all of a physician's knowledge of the physical condition asked about. Carson, at 216; 8 J. Wigmore, Evidence ยง 2390, at 861 (1961).
As we stated in Carson, the fiduciary nature of the physician-patient relationship is not an independent basis to preclude a treating physician's testimony once the patient-physician privilege has been waived. While a physician assumes certain obligations in treating and advising a patient, these obligations do not include refraining from offering adverse testimony against a patient. The physician has an independent duty to testify honestly and truthfully in a court of law, be it in favor of the plaintiff or the defense. See Carson, at 218-19.
The need for truth outweighs any residual privacy interest stemming from the physician-patient relationship once a patient puts his or her medical condition at issue by filing suit. See Torres v. Superior Court, 221 Cal. App. 3d 181, 187, 270 Cal. Rptr. 401, 404 (1990); Orr v. Sievert, 162 Ga. App. 677, 680, 292 S.E.2d 548 (1982). At that point, a treating physician may offer truthful testimony regarding
the condition at issue regardless of which party the testimony benefits. "'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.'" Carson, at 220 (quoting Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983)). We thus conclude, pursuant to our analysis here and in Carson, that the trial court did not err in allowing one of plaintiff's treating physicians to offer opinion evidence in favor of the defense.
Plaintiff also challenges Dr. Mills' testimony on the basis that it violated the trial court's own orders concerning expert testimony. On February 1, 1991, the court ruled that each party would be limited to one expert per specialty area, not to exceed two experts per specialty. The five specialty areas were pars planitis, glaucoma, pharmacology, economics, and rehabilitation. After designating its experts, the defense noted that it hoped to call Dr. Mills as well, without having him count as one of its five experts.
On June 24, the court ruled that Dr. Mills could testify, but informed the defense that if he were called,
he is your expert for the purpose of expressing opinions. You can call Dr. Mills for the purpose
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