SENATE BILL REPORT

SB 5493

BYSenators Hayner and Rasmussen

Allowing informal discovery procedures in personal injury cases.

Senate Committee on Law & Justice

Senate Hearing Date(s):February 6, 1989

Senate Staff:Dick Armstrong (786-7460)

AS OF FEBRUARY 2, 1989

BACKGROUND:

A physician cannot be examined in any civil action about information acquired in treating a patient, unless the patient waives such privilege.  In an action for personal injuries, the physician-patient privilege is deemed to be waived 90 days after filing the cause of action.  The Washington State Supreme Court recently held (Loudon case) that a defense attorney may not engage in ex parte (private, individual) meetings with a plaintiff's treating physician, even if the physician-patient privilege has been waived.  The court reasoned that ex parte interviews should be prohibited as a matter of public policy, because it could result in the disclosure of a relevant, privileged information and such private interviews might have a chilling effect on the physician-patient privilege.

The court ruling means that defense attorneys will have to use formal discovery procedures such as depositions to obtain information from treating physicians.  Formal discovery is more costly than private interviews, and depositions require the presence of all involved attorneys as well as a court reporter.  It is suggested that the requirements of the Loudon case do not provide equity and fairness to all the parties in a lawsuit.  First, defense attorneys are placed at a disadvantage in preparing a defense to a case, since they cannot meet privately with treating physicians and receive information outside the presence of plaintiffs' attorneys and court reporters.  Second, the Loudon case results in higher costs to the defense because they have to obtain information through formal discovery procedures.

SUMMARY:

When the physician-patient privilege has been waived under RCW 5.60.060 in an action for personal injuries or wrongful death, informal discovery procedures (ex parte interviews) with physicians may be conducted in the same manner as with other witnesses. 

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested