Duquette v. Superior Court
In Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App. 1989), the Court held that defense counsel in a medical malpractice action may not engage in ex parte communications with a plaintiff's treating physicians without the plaintiff's consent. Duquette addressed how to give effect to the implied waiver of the privilege in a malpractice lawsuit while protecting the interests of the patient holding the privilege.
The defense attorneys interpreted the implied waiver as allowing them essentially unfettered access to a plaintiff's treating physicians.
Plaintiffs argued the implied waiver was narrower, allowing treating physicians to be examined only through the formal methods of discovery available to a party to a civil action. See A.R.S. 12-2235 ("In a civil action a physician or surgeon shall not . . . be examined.").
The Court agreed with the plaintiffs.
Upon review of the numerous countervailing public policy considerations presented on the issue in this case, we conclude that the advantages to be gained in the informal ex parte procedure are clearly outweighed by the dangers that procedure presents to the physician-patient relationship as well as by the pressures the procedure brings to bear on the physician and attorney participants. We agree wholeheartedly with the Supreme Court of Washington when it stated that "the unique nature of the physician-patient relationship and the dangers which ex parte interviews pose justify the direct involvement of counsel in any contact between defense counsel and a plaintiff's physician." Accordingly, based upon the provisions of A.R.S. 12-2235 and public policy, we hold that defense counsel in a medical malpractice action may not engage in non-consensual ex parte communications with plaintiff's treating physician. Duquette, 161 Ariz. at 277, 778 P.2d at 642.