When a plaintiff brings a legal claim, the physician-patient privilege is waived for the purpose of defending the action. In a medical malpractice action, for example, that means that attorneys retained to defend the action may therefore freely discuss the plaintiff's medical treatment with their clients--the physician and other medical personnel employed by the hospital or medical corporation that they represent--without the plaintiff or her attorney being present. But what about other physicians or employees of different medical entities who also treated the plaintiff and may have relevant information, but are not parties to the lawsuit? May defense counsel contact those providers and discuss the plaintiff's medical treatment without her presence or permission? The answer to that is typically a resounding "No." But does the analysis change where the same attorney or law firm defending the action also has an independent attorney-client relationship with treating physicians or personnel who are not parties to the lawsuit?
Despite decades of lingering controversy over the issue, the South Dakota courts have not squarely addressed the question of whether ex parte communications between defense counsel and a plaintiff's non-party physicians or other medical personnel, deemed impermissible under normal circumstances, should be blessed where defense counsel has an independent, attorney-client relationship with those witnesses.
The premise of this article is that we should collectively consider establishing some enforceable boundaries in what has become a nebulous zone, consisting of multiple, overlapping representations and competing duties and privileges. The absence of controlling guidance has created a void of uncertainty in which patients, medical care providers, and their attorneys maintain fundamental and unresolved disagreements regarding what is and is not permitted in terms of ex parte communications within the context of litigation. Concrete guidance on this often vexing issue would be of universal benefit in governing the actions of patients, medical providers, and attorneys.
I. HISTORY AND DEVELOPMENT OF THE MEDICAL PRIVILEGE IN SOUTH DAKOTA AS APPLIED TO CIVIL ACTIONS.
Although this article concerns the appropriate process for obtaining and exchanging medical information, rather than the medical privilege itself, a chronological examination of the history of the medical privilege as it has been applied to civil proceedings in South Dakota is illuminating for consideration of these issues. (1)
A. EARLY HISTORY
The principle of medical confidentiality traces back well over two millennia to the timeless oath of Hippocrates, the fifth century B.C. Greek physician considered the father of medicine. In modernity, it has been enshrined in the American Medical Association's Principles of Medical Ethics (2) and codified as federal law. (3) It is well settled that there is an inherent fiduciary relationship between physician and patient premised upon the foundational principles of trust and confidentiality. The strong public policy supporting this fiduciary relationship is reflected in the South Dakota Supreme Court's recognition that a patient may bring a civil action against a physician for violation of the duty of confidentiality (4) and South Dakota statutes regulating the practice of medicine. (5) Under South Dakota law, "willfully betraying a professional confidence" is considered unprofessional or dishonorable conduct warranting severe sanctions, including loss of medical license and criminal penalties. (6)
Protection of patient confidentiality as a matter of public policy and professional ethics, however, does not necessarily equate to the recognition of a legal privilege for purposes of litigation. As the South Dakota Supreme Court has noted, the common law did not recognize a legal privilege between doctors and their patients. (7) Nonetheless, the medical privilege has deep roots in the Dakotas, both in law and public policy, dating back at least to section 499(3) of the Territorial Revised Code of 1877. …