Phoenix Children’s Hospital, Inc. v. Grant, 620 Ariz.
Adv. Rep. 26 (App. Div. I, November 1, 2011) (J. Irvine)
DUQUETTE BAR ON COMMUNICATIONS BETWEEN MED MAL
DEFENSE COUNSEL AND TREATING DOCTOR DOES NOT APPLY TO DEFENDANT HOSPITAL AND
ITS EMPLOYEES
Plaintiffs’ sued defendant hospital and its employees alleging
the negligent placement of a feeding tube into their minor daughter’s trachea
instead of her stomach caused food to go into her lung and resulted in
permanent and catastrophic injury. Following the incident, plaintiffs’
daughter continued to be treated by the hospital and its staff even up to the
time of this appeal. The trial court granted plaintiffs’ motion to
preclude the defendant or its counsel from ex parte communications with
employees of the hospital involved in plaintiffs’ daughter’s care excepting the
employees being sued. See Duquette v. Superior Court, 161 Ariz.
269, 778 P. 2d 634 (App. 1989). The Arizona Court of Appeals accepted
defendants’ Petition for Special Action and reversed.
ARS sec. 12-2235 prohibits a physician from communicating to
anyone other than her patient regarding medical care of that patient without
that patient’s consent. The purpose of the privilege is to assure “full
and frank disclosure of medical history and symptoms by a patient to his
doctor.” However, when a patient puts her medical condition at
issue, as when she files a medical malpractice action, there is an implied
waiver of the privilege. While the holding in Duquette prohibits
ex parte communications between a treating doctor and a med mal defense attorney
despite the implied waiver, it has no application here.
“The knowledge of a corporate agent is imputed to the
corporation if it is acquired by the agent within the scope of his or her
employment and related to a matter within his or her authority . . . . this
rule is based upon a conclusive presumption that the agent will communicate to
the corporation whatever knowledge or notice he receives in relation to his
agency which is necessary for the protection of the interests of the
corporation.” Thus the right of the defendant and its attorney to
communicate ex parte with its employees exists because of the employment
relationship and does not depend upon the implied waiver of the privilege.
In dicta the court indicated that there could very well be
situations where the Duquette rule would apply to employees of a
defendant hospital, such as where the employees are involved in treatment of a
medical condition totally unrelated medical condition at issue in the
lawsuit. That, however was not the case here.
