The Battle of Privileges

By Alex Stein

When a patient files a malpractice suit against a doctor, she waives the evidentiary privilege that protects the information pertaining to her treatment by the doctor. This information extends to all communications between the patient and the doctor, the patient’s medical history, diagnosis, treatment, and medical records. The patient’s waiver of the privilege is not absolute. Rather, it relates only to information and documents needed for the doctor’s defense. The same principle applies to the patient’s treating physician whom she did not sue. The defendant is entitled to subpoena this nonparty physician and obtain from her information and documents relevant to his defense.

To realize this entitlement, the defendant’s attorney needs to interview the nonparty physician before trial. The patient’s attorney demands to be present at that interview to protect her client’s privilege by appropriately limiting the physician’s questioning by the defendant’s attorney. The defendant’s attorney counters this demand by invoking the attorney-client privilege and its “work product” extension.

This battle of privileges has no easy solution.

When a nonparty physician works for the hospital sued by the patient, the hospital might be able to secure the physician’s ex parte interview by its attorney by invoking the physician’s reporting duty that can be found in licensing statutes: see, e.g., Burger v. Lutheran General Hospital, 759 N.E.2d 533 (Ill. 2001). Not all states, however, have a statute that provides for unlimited intrahospital communications. Furthermore, the patient’s physician may have no employment or other relationship with the defendant. The problem at hand consequently calls for a comprehensive solution.

The Florida Supreme Court had resolved this problem by according victory to the doctor-patient privilege: Hasan v. Garvar, 108 So.3d 570 (Fla. 2012). The Court reasoned that this privilege is defined by statute broadly enough to prevent any ex parte communication between the patient’s physician and the defendant’s attorney. However, the Court did not address the attorney-client privilege: it was only mentioned in Chief Justice Polston’s dissent.

In Youngs v. PeaceHealth, — P.3d —-, 2014 WL 265568 (Wash. 2014), the Supreme Court of Washington handed down an innovative solution to this problem. The Court divided the interviewed physician’s information into two parts: (1) the core part, which includes the physician’s “direct knowledge of the event or events triggering the litigation”; and (2) the peripheral part, which includes other medical information potentially relevant to the case. Based on that distinction, the Court decided that the attorney-client privilege trumps the doctor-patient privilege where an ex parte interview enables the defendant’s attorney to access the facts of the alleged negligent incident. As for peripheral information, the Court decided that the patient’s right to supervise her nonparty physician’s communications with opposing counsel stays intact. For purposes of this ruling, peripheral information includes information about the patient’s “prior and subsequent treatment (information about the [patient’s] particular vulnerabilities or the nature of the [patient’s] recovery or disabilities).” The Court has also clarified that “a trial court may not restrict communications between a hospital’s employees and quality improvement committee but that members of the committee must be screened from defense counsel in an action against the hospital for negligence or medical malpractice.”

The Court’s approach to the battle of privileges has a potential drawback. Fine-tuned rules are costly to implement. By setting up a rule that depends on the not-always-clear distinction between core and peripheral information, the Court has created a new battlefield for costly satellite litigation far removed from the merits of the case. Under the new regime, defense attorneys will routinely try to establish that the plaintiff’s waiver of the doctor-patient privilege extends to peripheral medical information as well because it is relevant to the case. Extending the patient’s waiver in this way would entitle the defense attorney to have an ex parte interview with the nonparty physician.

A far better alternative, in my opinion, was to let the attorney-client privilege win the battle. Defense attorneys would then be able to obtain some information that should be protected by the doctor-patient privilege. The ensuing loss of the patient’s privacy, however, would be minimal because defense attorneys have no economic incentives to gather irrelevant information (for information relevant to the patient’s malpractice suit the privilege will be waived). Society’s saving from the elimination of satellite litigation would consequently exceed this loss.

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