Arizona Court of Appeals Division One Holds That Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App. 1989), Does Not Apply to Treating Physicians Who Are Employees of a Corporate Defendant That is Itself a Defendant in a Medical Malpractice Action.

Joseph and Lesa Riddle admitted their daughter, Alesha, to Phoenix Children’s Hospital (the “Hospital”) to receive treatment for severe medical problems. A short time later, the Riddle’s filed suit against the hospital, alleging that a nurse working for the Hospital had negligently placed a feeding tube into Alesha’s trachea instead of her stomach, causing food to go into her lung.  Following the incident, Alesha continued to be treated at the Hospital by many different physicians and other personnel.

During the litigation, the Riddles filed a motion seeking to bar communications between the Hospital and/or its counsel and hospital employees who had treated or were treating Alesha, other than any employees who were affirmatively alleged to be liable.  After the trial court granted the motion, the Hospital filed a motion arguing that the trial court’s ruling prevented the Hospital from adequately preparing Dr. Jeffrey Pearl, a hospital-employed surgeon who had performed multiple surgeries on Alesha.   The court issued an order requiring the Hospital to retain separate counsel to represent Dr. Pearl at his deposition and preventing the Hospital or its attorneys from communicating with that attorney.  The Hospital timely filed a special action.

The Arizona Court of Appeals subsequently vacated the trial court’s order.  Arizona law recognizes that physician-patient communications are privileged.  However, when a patient files a medical malpractice lawsuit, the privilege is impliedly waived to allow the defendant access to information necessary to make a defense.  In Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App. 1989), the Arizona Court of Appeals held that, in a malpractice lawsuit, the implied waiver allowed treating physicians to be examined only through the formal methods of discovery available to a party to a civil action.  In this case, however, the Court of Appeals determined that the Hospital had a right independent of the implied waiver to discuss a plaintiff/patient with its own employees as a result of the existing employment relationship and that Duquette, therefore, did not apply.   The Court thus held that the trial court’s order was not supported by the law.

Judge Irvine authored the opinion; Judges Kessler and Hall concurred.