## Facts

- A minor plaintiff received treatment from multiple physicians, including a resident physician at a hospital, during infancy and later for a spinal tumor.
- The minor and his parents sued the resident physician and the hospital for medical malpractice, alleging improper treatment at birth and delayed diagnosis of the tumor.
- During discovery, defense counsel conducted nonconsensual ex parte interviews with approximately thirteen of the minor’s treating physicians.
- Plaintiffs moved to bar testimony from physicians contacted ex parte and to disqualify defense counsel.
- The trial court denied disqualification but barred those physicians from serving as defense expert witnesses unless first called as experts by plaintiffs.
- Defendants sought special action relief, challenging limits on their use of the treating physicians and seeking approval of ex parte interviews.

## Issues

1. Whether, after a malpractice plaintiff places medical condition at issue, defense counsel may conduct nonconsensual ex parte communications with the plaintiff’s treating physicians.
2. Whether the implied waiver of physician–patient privilege permits informal ex parte interviews or instead confines disclosure to formal discovery procedures.
3. Whether public policy and Arizona’s physician–patient privilege statute require restricting defense access to treating physicians to supervised, on-the-record processes.

## Decision

- The Court of Appeals accepted special action jurisdiction because ordinary appeal would not provide adequate review of the discovery/privilege question.
- The court held that defense counsel may not engage in nonconsensual ex parte communications with a malpractice plaintiff’s treating physicians.
- The court ruled that defense access to treating physicians must proceed through formal discovery methods under the Arizona Rules of Civil Procedure.
- The court declined to grant a general authorization for ex parte interviews based on implied waiver of privilege.

## Legal Principles

- Arizona’s physician–patient privilege (A.R.S. § 12-2235) bars compelled disclosure of information acquired in treating a patient absent consent, subject to limited implied waiver when a patient puts medical condition in controversy.
- Filing a medical malpractice action creates only a limited implied waiver of the privilege as to information relevant to the claims and defenses; it does not create unrestricted access to the patient’s treating physicians.
- Nonconsensual ex parte interviews risk disclosure of irrelevant confidential information and create improper pressures on physicians; these risks outweigh efficiency benefits of informal contacts.
- The proper means to obtain information from treating physicians in this setting is formal discovery (e.g., depositions and other rule-based procedures) with counsel participation and procedural safeguards.

## Conclusion

The court held that a malpractice plaintiff’s implied waiver of physician–patient privilege does not authorize defense counsel to conduct nonconsensual ex parte interviews with treating physicians; defendants must obtain relevant medical information through formal, rule-governed discovery processes.


Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (Ariz. Ct. App. 1989)