Bulsara v. Watkins: A Problematic Application of the Ex Parte Contact Rules

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1 Bulsara v. Watkins: A Problematic Application of the Ex Parte Contact Rules Suzanne G. Clark Samantha Blassingame Leflar I. INTRODUCTION When the attorney-client privilege and the physicianpatient privilege collided in Bulsara v. Watkins, 1 the physician-patient privilege prevailed when the Arkansas Supreme Court disqualified an attorney from representing a defendant treating physician against the plaintiff-patient 2 under Rule 503(d)(3)(B) of the Arkansas Rules of Evidence and Rule 35(c)(2) of the Arkansas Rules of Civil Procedure. 3 Once a lawsuit is filed, these court rules prohibit defense counsel from communicating with a nonparty, treating physician of a plaintiff-patient. 4 In Bulsara, prior to the subject lawsuit, two partnering physicians sought legal counsel from an attorney regarding an incident with a shared patient. 5 The plaintiff-patient subsequently Clark Law Firm, PLLC; J.D., University of Arkansas School of Law; Arkansas Law Review Editor in Chief, ; Adjunct Professor, University of Arkansas School of Law, teaching Medical Negligence Claims in Arkansas. The authors thank Adam Bailey, Malcom Law Firm, for his research assistance. Associate, Kutak Rock LLP; J.D. 2010, University of Arkansas School of Law; Arkansas Law Review Editor in Chief, The author would like to thank Mark W. Dossett, Partner, Kutak Rock LLP, J.D. 1995, University of Arkansas School of Law, and Jeff Fletcher, Partner, Kutak Rock LLP, J.D. 2005, for their assistance in thinking through the issues discussed in this piece. 1. Bulsara v. Watkins (Bulsara II), 2012 Ark. 108, 387 S.W.3d This article uses the term plaintiff-patient at various times to generally refer to a medically injured plaintiff. In Bulsara II, the plaintiff was Dr. Ketan Bulsara, the father of the stillborn Simi Bulsara. Id. at 2, 387 S.W.3d at 167. Dr. Bulsara sued individually, on behalf of Simi Bulsara s estate, and on behalf of the wrongful-death beneficiaries of Simi Bulsara. Id. at 1, 387 S.W.3d at Id. at 20, 387 S.W.3d at ARK. R. EVID. 503(d)(3)(B); ARK. R. CIV. P. 35(c)(2); see Bulsara II, 2012 Ark. 108, at 7, 387 S.W.3d at 170 (citing Kraemer v. Patterson, 342 Ark. 481, 492, 29 S.W.3d 684, 690 (2000)). 5. Bulsara v. Watkins (Bulsara I), 2009 Ark. App. 409, at 1-2, 319 S.W.3d 274,

2 360 ARKANSAS LAW REVIEW [Vol. 66:359 filed a medical-malpractice lawsuit, naming only one of the physicians as a defendant. 6 Despite the physicians shared practice, 7 their potential liability in the same case, 8 a jury verdict in the defendant-physician s favor, 9 and no showing of prejudice, 10 a fractured Arkansas Supreme Court held that once the plaintiff-patient commenced an action naming only one of the physicians as defendant, Rule 503(d)(3)(B) of the Arkansas Rules of Evidence and Rule 35(c)(2) of the Arkansas Rules of Civil Procedure required the named physician to sever her existing attorney-client relationship. 11 Bulsara required the Court to triage competing confidential relationships with concomitant fiduciary duties and evidentiary privileges the evidentiary physicianpatient privilege; a physician s duty of confidentiality; the attorney-client privilege; an attorney s fiduciary duty; a physician s right to select her attorney; and underlying it all, the tenacious friction between truth-seeking and protecting confidential relationships. 12 Unfortunately, the majority opinion conflated several of these separate principles and ignored others. In doing so, the Court neglected the indepth analysis warranted by the competing policies at issue and the practical effects of the Court s holding on medicalmalpractice litigation. Part II of this article provides the context of the Bulsara case. Part III.A explains Rule 503(d)(3)(B) of the Arkansas Rules of Evidence, Rule 35(c)(2) of the Arkansas Rules of Civil Procedure, the rationale for each rule, and the underlying testimonial privilege and related fiduciary duty designed to protect the physician-patient relationship. Part III.B compares the competing physician-patient and attorney-client relationships at stake in Bulsara and, in light of their relative values, questions the decision to prioritize 6. Id. at 2-3, 319 S.W.3d at Id. at 1, 319 S.W.3d at Id. at 2-4, 319 S.W.3d at Id. at 1, 319 S.W.3d at Bulsara I, 2009 Ark. App. 409, at 6-7, 319 S.W.3d at 278; see also Bulsara II, 2012 Ark. 108, at 21, 387 S.W.3d 165, 177 (Gunter, J., concurring in part and dissenting in part). 11. See infra Part II.A-B. 12. See Bulsara II, 2012 Ark. 108, at 6-11, 387 S.W.3d at (majority opinion).

3 2013] BULSARA V. WATKINS 361 an already precarious physician-patient relationship and the efficacy of prohibiting ex parte contact under the circumstances. Part IV dissects the Arkansas Supreme Court s decision in Bulsara: Part IV.A distinguishes the persuasive authority relied on by the Court and discusses the inapplicability of the ex parte rules where the non-party, treating physician is adversarial to the plaintiff-patient; Part IV.B addresses the presumption of prejudice required for the Court s reversal of the jury verdict. Finally, Part V.A warns of Bulsara s negative practical implications. Part V.B proposes specific amendments to Rule 503 of the Arkansas Rules of Evidence and Rule 35 of the Arkansas Rules of Civil Procedure to curb Bulsara s impact while maintaining the rules substantive policies. II. THE BULSARA DECISION The events leading to the Bulsara decision date back to November 9, 2003, when Mrs. Nita Bulsara arrived at St. Vincent Doctors Hospital (St. Vincent) in the early stages of labor. 13 Dr. Rosey Seguin, who practiced at the Arkansas Women s Center (the Center) with Dr. Julia Watkins, managed Mrs. Bulsara s pregnancy. 14 Dr. Watkins was the obstetrician on call on the night Mrs. Bulsara went into labor. 15 A fetal heart monitor documented the baby s heartbeat, and the nurses at St. Vincent periodically called Dr. Watkins to update her on the baby s and Mrs. Bulsara s condition. 16 After Dr. Ketan Bulsara expressed concerns about his daughter s heart-rate decelerations, Nurse Allison Bratton called Dr. Watkins at 1:40 a.m. 17 Dr. Watkins arrived at the hospital shortly thereafter and performed an amnioinfusion procedure to stabilize the baby s heart rate. 18 Believing the baby s condition was stable, Dr. Watkins left the hospital at 3:00 a.m. after instructing the nurses to call 13. Bulsara I, 2009 Ark. App. 409, at 1, 319 S.W.3d at Id. 15. Id. 16. Id. at 1-2, 319 S.W.3d at Id. at 2, 319 S.W.3d at Bulsara I, 2009 Ark. App. 409, at 2, 319 S.W.3d at 275.

4 362 ARKANSAS LAW REVIEW [Vol. 66:359 her if necessary. 19 Although Nurse Bratton did not realize it, the baby s condition continued to deteriorate. 20 When Dr. Seguin arrived at the hospital later that morning, she detected no fetal activity. 21 Dr. Seguin delivered the baby stillborn at 9:40 a.m. and concluded the baby had asphyxiated on the umbilical cord. 22 After learning of the stillbirth, Dr. Watkins returned to the hospital to consult with Dr. Seguin. 23 Dr. Bulsara confronted the two physicians in a manner that led them to believe that legal action against them was likely. 24 Consequently, Dr. Watkins called Phil Malcom, an attorney who had previously represented Dr. Watkins and Dr. Seguin. 25 Mr. Malcom agreed to represent Dr. Watkins, Dr. Seguin, and the Center regarding any claims or litigation related to the stillbirth of the Bulsaras baby. 26 Dr. Bulsara sued Dr. Watkins and St. Vincent on April 19, 2004, for medical malpractice and wrongful death. 27 Dr. Seguin remained vulnerable to suit until the statute of limitations expired on November 9, Therefore, Mr. Malcom continued to represent both doctors and the Center. 29 A dispute arose between the parties when the plaintiff s attorney, Ms. Melody Piazza, attempted to schedule a meeting with Dr. Seguin. 30 Mr. Malcom objected to the plaintiff s attorneys meeting with Dr. Seguin outside his presence. 31 Ms. Piazza contended that Mr. Malcom s communications with Dr. Seguin constituted improper, ex parte contact with an opposing party s treating physician and, thus, violated Rule 503(d)(3)(B) of the 19. Id. at 2, 319 S.W.3d at Id. at 2, 319 S.W.3d at Id. 22. Id. 23. Bulsara I, 2009 Ark. App. 409, at 2, 319 S.W.3d at Id. 25. Id. 26. Id. 27. Id. 28. Bulsara I, 2009 Ark. App. 409, at 3-4, 319 S.W.3d at ; see also ARK. CODE ANN (a) (Repl. 2006) ( [A]ll actions for medical injury shall be commenced within two (2) years after the cause of action accrues. ). 29. Bulsara I, 2009 Ark. App. 409, at 3-4, 319 S.W.3d at Id. at 3, 319 S.W.3d at Id.

5 2013] BULSARA V. WATKINS 363 Arkansas Rules of Evidence and Rule 35(c)(2) of the Arkansas Rules of Civil Procedure. 32 Mr. Malcom disagreed because his representation of both doctors began prior to the lawsuit and, further, because Dr. Seguin remained potentially liable to the plaintiff. 33 Dr. Bulsara moved to disqualify Mr. Malcom as Dr. Watkins s attorney, impose sanctions, and prohibit Mr. Malcom from having any further improper ex parte communications with Dr. Seguin. 34 The circuit court denied Dr. Bulsara s motion, and Mr. Malcom continued to represent Dr. Watkins, Dr. Seguin, and the Center. 35 In November 2005, Dr. Bulsara added the Center as a defendant after taking the deposition of Dr. Seguin and Dr. Watkins. 36 He dismissed the Center prior to trial. 37 Dr. Bulsara also dismissed St. Vincent after reaching a settlement. 38 The jury found in favor of Dr. Watkins after twenty-two minutes of deliberation, 39 and the court entered judgment on November 3, The circuit court denied Dr. Bulsara s motion for new trial and his motion to vacate or set aside judgment. 41 Dr. Bulsara appealed to the Arkansas Court of Appeals, and a three-judge panel unanimously affirmed the trial court (hereinafter Bulsara I). 42 The Arkansas Supreme Court granted review and dismissed the appeal for lack of a final order. 43 Dr. Bulsara then obtained a final order and re-filed his appeal. 44 The 32. Id. 33. Id. at 3-4, 319 S.W.3d at Bulsara I, 2009 Ark. App. 409, at 3, 319 S.W.3d at Id. at 4, 319 S.W.3d at Id. 37. Id. at 4, 319 S.W.3d at Id. at 4 n.2, 319 S.W.3d at 277 n John Lynch, Little Rock Doctor Is Cleared of Blame in Death, ARK. DEMOCRAT-GAZETTE, Nov. 4, 2006, at B Bulsara II, 2012 Ark. 108, at 2, 387 S.W.3d 165, Id. at 3, 387 S.W.3d at Bulsara I, 2009 Ark. App. 409, at 1, 12, 319 S.W.3d at , Bulsara v. Watkins, 2010 Ark. 453, at 1, 2010 WL , at *1 (Nov. 18, 2010). The Court raised the lack-of-finality issue sua sponte, noting that the circuit court never dismissed Dr. Watkins s cross-claim against St. Vincent for indemnity and contribution, despite dismissing Dr. Bulsara s claim against Dr. Watkins with prejudice. Id. at 4, 2010 WL , at * Bulsara II, 2012 Ark. 108, at 3, 387 S.W.3d at 168.

6 364 ARKANSAS LAW REVIEW [Vol. 66:359 Arkansas Supreme Court reversed and remanded the case to the circuit court for a new trial (hereinafter Bulsara II). 45 A. The Majority Decision The Bulsara II majority held that Mr. Malcom s ex parte contact with Dr. Seguin violated Rule 503 of the Arkansas Rules of Evidence and Rule 35 of the Arkansas Rules of Civil Procedure (collectively, the ex parte rules). 46 Justice Danielson authored the opinion and was joined by Justices Goodson and Corbin in ordering a new trial and disqualifying Mr. Malcom as Dr. Watkins s attorney. 47 Justice Brown concurred with the majority s holding that a violation of the ex parte rules occurred warranting remand for a new trial. 48 He dissented, however, from Justice Danielson s conclusion that the appropriate remedy for the violation of the ex parte rules was the disqualification of Mr. Malcom as Dr. Watkins s attorney. 49 The majority s analysis considered a straight application of the ex parte rules and gave little, if any, weight to the attorney-client relationship between Mr. Malcom and Dr. Seguin. 50 The majority also discounted that Mr. Malcom already had access to any confidential information Dr. Seguin could provide by virtue of his 45. Id. at 11, 387 S.W.3d at Id. at 10, 387 S.W.3d at Id. at 1, 11, 387 S.W.3d at 167, Id. at 12, 387 S.W.3d at 172 (Brown, J., concurring in part and dissenting in part). 49. Bulsara II, 2012 Ark. 108, at 19, 387 S.W.3d at 176. While not providing a basis for reversal, Justice Brown s opinion asserts that [t]he real issue in the... case is Mr. Malcom s violations of the Arkansas Rules of Professional Conduct prohibiting conflicts of interest. Id. at 17, 387 S.W.3d at 175. However, the Arkansas Rules of Professional Conduct only required withdrawal in the instance of a concurrent conflict of interest that significantly risked materially limiting Mr. Malcom s representation of Dr. Seguin, Dr. Watkins, or the Center. ARK. RULES OF PROF L CONDUCT R. 1.7(a)(2). Because the defense centered on allegations of negligence against the hospital s nurses whereby the nurses failed to inform either doctor that the baby was in distress no conflict of interest existed between the physicians. See Dr. Julia M. Watkins Appellee s Brief and Supplemental Addendum at 11-12, Bulsara I, 2009 Ark. App. 409 (No. CA07-741). Thus, Mr. Malcom complied with the Arkansas Rules of Professional Conduct. Moreover, any potential conflict was between the physicians; the plaintiff lacked standing to allege a conflict between defendants, warranting disqualification of their attorney. 50. Bulsara II, 2012 Ark. 108, at 10, 387 S.W.3d at 171 (majority opinion).

7 2013] BULSARA V. WATKINS 365 representation of Dr. Watkins and the Center. 51 Dr. Watkins argued that the ex parte rules did not apply given her attorney-client relationship with Mr. Malcom, and even if the Court concluded Malcom had violated the rules, Dr. Bulsara had presented no proof of prejudice. 52 The Court found prejudice in the fact that Mr. Malcom had access to the Bulsaras confidential information through Dr. Seguin and, further, that Mr. Malcom restricted access to Dr. Seguin. 53 While acknowledging that both physicians were entitled to contact an attorney when threatened with suit, the Court held that the ex parte rules required Mr. Malcom to sever his attorney-client relationship with Dr. Watkins once Dr. Bulsara filed his lawsuit and declined to name Dr. Seguin as a defendant. 54 The Court held that Mr. Malcom circumvented the clear intent of [its] rules by continuing to represent Dr. Watkins. 55 B. The Dissent Justice Gunter, joined by Chief Justice Hannah and Justice Baker, dissented from the majority, 56 concluding that the Court should not have reversed the jury s verdict because Dr. Bulsara failed to demonstrate a reasonable possibility of prejudice. 57 The dissent found it entirely appropriate that after being confronted by Dr. Bulsara Dr. Watkins, Dr. Seguin, and the Center would jointly retain Mr. Malcom as legal counsel because all were potential defendants in the threatened litigation. 58 The 51. Id. 52. Id. at 6, 387 S.W.3d at Id. at 11, 387 S.W.3d at Id. at 10, 387 S.W.3d at Bulsara II, 2012 Ark. 108, at 10, 387 S.W.3d at Id. at 21, 24, 387 S.W.3d at (Gunter, J., concurring in part and dissenting in part). Justice Gunter s opinion is styled as concurring in part and dissenting in part because the opinion agrees with the majority s disposition of Dr. Watkins s motions on appeal, neither of which were related to the ex parte contact rules. Id. at 21, 387 S.W.3d at Id. at 24, 387 S.W.3d at Id. at 21, 387 S.W.3d at 177 (citing Courteau v. St. Paul Fire & Marine Ins. Co., 307 Ark. 513, 821 S.W.2d 45 (1991)). Dr. Watkins relied on Courteau v. St. Paul Fire & Marine Insurance Co. for her contention that Mr. Malcom could meet with employee-witnesses who were potential defendants in the lawsuit. Id. at 11 n.3, 387 S.W.3d at 171 n.3 (majority opinion). The majority deemed Courteau inapposite

8 366 ARKANSAS LAW REVIEW [Vol. 66:359 dissent noted that in order to prepare a defense the physicians needed to share information with Mr. Malcom regarding their care of Mrs. Bulsara and that the attorneyclient privilege protected any information provided. 59 Justice Gunter lamented that the majority s holding required Dr. Watkins and the Center to hire a new attorney once Dr. Bulsara filed his lawsuit without naming Dr. Seguin as a defendant, objecting to such an inefficient result. 60 The dissent reasoned that there could be no violation of the ex parte rules prior to a lawsuit being filed. 61 Moreover, the majority failed to suggest any authority mandating retroactive violation of the ex parte rules after a lawsuit is filed. 62 In discussing the absence of demonstrable prejudice, Justice Gunter pointed to Dr. Bulsara s failure to identify any communications provided to Mr. Malcom constituting a violation of the physician-patient privilege that he would not have otherwise received as attorney for Dr. Watkins or the Center. 63 The dissent challenged the majority s assertion that Mr. Malcom restricted Dr. Bulsara s access to Dr. Seguin, noting that Dr. Bulsara had deposed Dr. Seguin on three different occasions and subpoenaed Dr. Seguin to testify at trial, but ultimately chose not to call Dr. Seguin as a trial witness. 64 Justice Gunter further concluded that disqualification of Mr. Malcom as Dr. Watkins s counsel was unsupported by caselaw. 65 Perhaps most importantly, the dissent noted that the primary authority on which the majority relied did not involve a non-party, treating physician and a defendant-physician who both participated because the case involved the attorney-client privilege rather than the physicianpatient privilege at issue in the instant case. Id. 59. Id. at 21-22, 387 S.W.3d at 177 (Gunter, J., concurring in part and dissenting in part) (quoting Baylaender v. Method, 594 N.E.2d 1317, 1326 (Ill. App. Ct. 1992)). 60. Bulsara II, 2012 Ark. 108, at 22, 387 S.W.3d at Id. 62. Id. 63. Id. 64. Id. at 22-23, 387 S.W.3d at Bulsara II, 2012 Ark. 108, at 23, 387 S.W.3d at 178.

9 2013] BULSARA V. WATKINS 367 in the care and treatment at issue. 66 Finally, the dissent concluded that under the applicable standard of review, Dr. Bulsara failed to show that his rights were materially affected by a reasonable possibility of prejudice and would, therefore, find no abuse of discretion in the circuit court s denial of a new trial. 67 III. CONFIDENTIAL RELATIONSHIPS IN BULSARA A. Arkansas s Ex Parte Rules Under the Arkansas Rules of Evidence, patients have the right to prohibit disclosure of medical records or confidential communications with a physician. 68 Rule 503(b) of the Arkansas Rules of Evidence contains the general rule of privilege: A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment When the patient makes a claim against a medical provider for malpractice, however, a limited waiver of the physician-patient privilege results: There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense, or, after the patient s death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense Id. at 23-24, 387 S.W.3d at 178 (citing the majority s reliance on Baylaender v. Method and also noting that Baylaender did not involve physicians who had jointly retained counsel). 67. Id. at 24, 387 S.W.3d at 178. After publication of Bulsara II, Dr. Watkins petitioned the Court for rehearing. Bulsara v. Watkins, No , 2012 Ark. LEXIS 217, at *1 (Ark. May 3, 2012). Recognizing the impact of the decision to their physician-clients, fifteen additional attorneys joined Dr. Watkins s petition, including author Suzanne G. Clark and Howard W. Brill, the Vincent Foster Professor of Legal Ethics and Professional Responsibility, University of Arkansas School of Law. The Court denied the petition for rehearing with the same split between the justices in the majority and dissent of Bulsara II. Id. 68. ARK. R. EVID. 503(b). 69. ARK. R. EVID. 503(b). 70. ARK. R. EVID. 503(d)(3)(A); see also ARK. R. CIV. P. 35(c)(1).

10 368 ARKANSAS LAW REVIEW [Vol. 66:359 Both Rule 503(d)(3)(B) of the Arkansas Rules of Evidence and Rule 35(c)(2) of the Arkansas Rules of Civil Procedure establish a caveat to the waiver of the physicianpatient evidentiary privilege: relevant medical information is discoverable in the case only through formal discovery procedures. 71 Rule 35(c)(1) of the Arkansas Rules of Civil Procedure requires a party whose physical, mental, or emotional condition is an element of the party s claim to execute an authorization allowing any requesting party access to the party s medical records. 72 Rule 35(c)(2) protects the physician-patient relationship by prohibiting contact between a party (or the party s attorney) and another party s treating physician unless the patient consents: Any informal, ex parte contact or communication between a party or his or her attorney and the physician or psychotherapist of any other party is prohibited, unless the party treated, diagnosed, or examined by the physician or psychotherapist expressly consents. A party shall not be required, by order of court or otherwise, to authorize any communication with his or her physician or psychotherapist other than (A) the furnishing of medical records, and (B) communications in the context of formal discovery procedures. 73 Rule 503(d)(3)(B) of the Arkansas Rules of Evidence contains the same caveat: Any informal, ex parte contact or communication with the patient s physician or psychotherapist is prohibited, unless the patient expressly consents. The patient shall not be required, by order of court or otherwise, to authorize any communication with the physician or psychotherapist other than (i) the furnishing of medical records, and (ii) communications in the context of formal discovery procedures. 74 The Arkansas Supreme Court promulgated the ex parte rules in the July 1, 1991 amendments to Rule 503 of 71. ARK. R. EVID. 503(d)(3)(B); ARK. R. CIV. P. 35(c)(2). 72. ARK. R. CIV. P. 35(c)(1). 73. ARK. R. CIV. P. 35(c)(2). 74. ARK. R. EVID. 503(d)(3)(B).

11 2013] BULSARA V. WATKINS 369 the Arkansas Rules of Evidence and Rule 35 of the Arkansas Rules of Civil Procedure. 75 The Court noted that a party may not be required to allow an adversary to communicate with the party s physician or psychotherapist outside the formal discovery process in order to protect the confidential relationship between a party and his physician or psychotherapist. 76 In 1992, two Arkansas federal court decisions interpreted the ex parte rules and reached different conclusions on whether the rules banned ex parte contact altogether or merely precluded courts from compelling a party to permit ex parte contact between an adversary and the party s physician. 77 To resolve the confusion, the Arkansas Supreme Court again amended Arkansas s ex parte rules to their present form in 1998, 78 stating the unambiguous purpose of the rules is to limit communications with a party s physician or psychotherapist to the formal discovery process. 79 Like the Arkansas Supreme Court, many courts have justified the ban on ex parte communications between a plaintiff-patient s treating physician and another party or the party s attorney as necessary to protect the confidential nature of the physician-patient relationship. 80 In addition to protecting the plaintiff-patient s interest in keeping medical information and related communications private, some courts have relied on the need to protect the unwary treating physician who may inadvertently disclose 75. ARK. R. EVID. 503(d)(3)(B); ARK. R. CIV. P. 35 reporter s notes (1990 amend.); see also King v. Ahrens, 798 F. Supp. 1371, (W.D. Ark. 1992). 76. ARK. R. CIV. P. 35 reporter s notes (1990 amend.). 77. Compare King, 798 F. Supp. at 1372, 1378 (interpreting the rules to bar only the court-compelled ex parte contact between a plaintiff-patient s treating physician and the plaintiff-patient s legal adversary), with Harlan v. Lewis, 141 F.R.D. 107, , 115 (E.D. Ark. 1992) (interpreting the rules to bar ex parte contact altogether). On appeal in Harlan, in the court s de novo prediction of the Arkansas Supreme Court s probable interpretation of its ex parte contact rules, the Eighth Circuit affirmed the lower court and rejected King s interpretation. Harlan v. Lewis, 982 F.2d 1255, 1263 (8th Cir. 1993). 78. ARK. R. EVID. 503(d)(3)(B); ARK. R. CIV. P. 35 reporter s notes (1998 amend.). 79. ARK. R. CIV. P. 35 reporter s notes (1998 amend.). 80. See, e.g., Petrillo v. Syntex Labs., Inc., 499 N.E.2d 952, (Ill. App. Ct. 1986); Wenninger v. Muesing, 240 N.W.2d 333, (Minn. 1976); Crist v. Moffatt, 389 S.E.2d 41, 47 (N.C. 1990); Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722, 730 (Tenn. 2006).

12 370 ARKANSAS LAW REVIEW [Vol. 66:359 confidential information during an informal interview with a plaintiff-patient s adversary. 81 Often physicians are not aware of the precarious legal position ex parte interviews place them in ; any breach of patient confidentiality may expose the doctor to charges of professional misconduct or tort liability. 82 The majority of courts reject the argument that limiting contacts with treating physicians to the formal discovery process places an undue burden on defense counsel and increases the cost of discovery. 83 Some jurisdictions approach ex parte contact with a nuanced approach rather than a complete ban. 84 For example, the Wisconsin Supreme Court banned ex parte communications regarding confidential information about a plaintiff-patient while allowing other ex parte contact. 85 In reaching its decision, the court declined to presume that either physicians or lawyers will engage in professional misconduct by knowingly discussing confidential information about a plaintiff-patient. 86 To safeguard the physician-patient privilege and the ethical duty of confidentiality by preventing the inadvertent disclosure of confidential information, the court held that defense counsel should: (1) inform the physician at the beginning of the conversation that he or she has the right to decline to speak with defense counsel; (2) warn that the conversation must be limited to matters that are not confidential; (3) instruct the physician not to disclose or discuss anything that he or she believes might 81. See Harlan, 141 F.R.D. at (quoting Duquette v. Superior Court, 778 P.2d 634, 641 (Ariz. Ct. App. 1989)); Manion v. N.P.W. Med. Ctr. of Pa., Inc., 676 F. Supp. 585, (M.D. Pa. 1987); Roosevelt Hotel Ltd. v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986); Crist, 389 S.E.2d at 47; Alsip, 197 S.W.3d at 728; see also Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 800 (N.D. Ohio 1965) (recognizing the public policy behind enforcing a physician s duty to maintain a patient s confidence in a lawsuit filed by a patient against his doctor s malpractice insurer for inducement to breach confidence). 82. Harlan, 141 F.R.D. at 112 (quoting Crist, 389 S.E.2d at 47). 83. See, e.g., Petrillo, 499 N.E.2d at ; Crist, 389 S.E.2d at 46; Alsip, 197 S.W.3d at 729. But see, e.g., Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983); Trans-World Invs. v. Drobny, 554 P.2d 1148, 1152 (Alaska 1976). 84. See, e.g., Reutter v. Webber, 179 P.3d 977, 982, 984 (Colo. 2007) (en banc); Steinberg v. Jensen, 534 N.W.2d 361, (Wis. 1995). 85. Steinberg, 534 N.W.2d at Id. at 371.

13 2013] BULSARA V. WATKINS 371 possibly be confidential; and (4) take all steps reasonably practicable to ensure that the conversation does not stray into a discussion of confidential information. 87 Similarly, in Colorado, defense counsel must give notice to a plaintiff-patient before interviewing non-party medical providers, and trial courts should take appropriate measures to protect against the divulgement of residually privileged information in the course of discovery, which would include allowing the plaintiff to attend the defendant s interviews with non-party medical providers. 88 Though specific approaches differ on how to limit ex parte communications between a plaintiff-patient s treating physician and a non-party medical provider, courts across the country have primarily focused on the need to protect irrelevant, confidential information from disclosure and the heightened risk of such disclosure in the typical medicalmalpractice case. 89 Because the ex parte rules have an inextricable connection with the physician-patient privilege and the duty of confidentiality all share the goal of protecting the physician-patient relationship a complete understanding of the rationale supporting the ex parte rules requires reflection on the physician-patient privilege and the physician s duty of confidentiality. 1. The Physician-Patient Evidentiary Privilege At common law, no physician-patient privilege existed, 90 though the medical profession adhered to 87. Id. 88. Reutter, 179 P.3d at 982, 984 (interpreting Samms v. District Court, 908 P.2d 520 (Colo. 1995) as not creating a blanket rule that a plaintiff is always entitled to attend interviews of non-party medical providers ). Some courts have even rejected any limitation on ex parte communications with a plaintiff-patient s treating physician in medical-malpractice cases. See, e.g., Doe, 99 F.R.D. at 129; Drobny, 554 P.2d at Sayera J. Iqbal Qasim, Comment, Civil Procedure Alsip v. Johnson City Medical Center: Tennessee Holds Ex Parte Communications Between Defense Counsel and Plaintiff s Non-Party Physicians Pose Invalid Threat to Physician- Patient Confidentiality, 37 U. MEM. L. REV. 531, (2007) (discussing various jurisdiction s approaches to ex parte contact rules). 90. Clinton DeWitt, Privileged Communications Between Physician and Patient, 10 W. RES. L. REV. 488, 492 (1959).

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