Utah Court of Appeals
Can physicians communicate ex parte with opposing counsel about former patients? Sorensen v. Barbuto Explained
Summary
Sorensen sued his former treating physician Dr. Barbuto after Barbuto communicated ex parte with defense counsel in Sorensen’s personal injury case and agreed to testify as an expert for the defense. The trial court granted Barbuto’s motion to dismiss all claims.
Practice Areas & Topics
Analysis
The Utah Court of Appeals addressed a critical question about physician confidentiality obligations in Sorensen v. Barbuto, establishing that doctors cannot freely communicate with opposing counsel about former patients even after the physician-patient relationship ends.
Background and Facts
After Sorensen sustained serious injuries in an automobile accident, Dr. Barbuto treated him for head injuries and seizures. When Barbuto was removed from Sorensen’s insurance network, the physician-patient relationship ended. Later, when Sorensen filed a personal injury lawsuit, Barbuto engaged in ex parte communications with defense counsel, prepared a report for the defense, and agreed to testify as an expert witness against his former patient. Crucially, Barbuto’s new testimony contradicted his earlier diagnosis, asserting that psychological factors rather than the accident caused Sorensen’s injuries.
Key Legal Issues
The court addressed whether a physician’s fiduciary duty of confidentiality continues after the physician-patient relationship terminates, and whether ex parte communications with opposing counsel breach that duty. The court also examined claims for breach of contract, negligence, invasion of privacy, and intentional infliction of emotional distress.
Court’s Analysis and Holding
The court held that while Utah Code section 78-14-6 requires written contracts for claims based on guarantees or assurances of results, it does not bar all contract claims against physicians. However, the court rejected the contract theory, finding that confidentiality duties sound in tort rather than contract. Significantly, the court ruled that Rule 506(d)(1) exceptions to physician-patient privilege do not eliminate all confidentiality obligations. Even when a patient places their condition at issue in litigation, physicians must notify patients before disclosing confidential information and cannot engage in unauthorized ex parte communications with opposing counsel.
Practice Implications
This decision reinforces that physicians retain ongoing confidentiality duties to former patients. The court’s holding protects patients from having their former doctors become adversaries in litigation without proper notice and procedural safeguards. For practitioners, this case highlights the importance of following proper discovery procedures rather than relying on informal ex parte communications with treating physicians.
Case Details
Case Name
Sorensen v. Barbuto
Citation
2006 UT App 340
Court
Utah Court of Appeals
Case Number
No. 20050501-CA
Date Decided
August 10, 2006
Outcome
Affirmed in part and Reversed in part
Holding
Ex parte communication between a physician and opposing counsel constitutes a breach of the physician’s fiduciary duty of confidentiality even after the physician-patient relationship has ended.
Standard of Review
Correctness for questions of law on motions to dismiss under Rule 12(b)(6)
Practice Tip
When defending physicians in malpractice or breach of duty cases, carefully analyze whether the physician-patient privilege exceptions in Rule 506(d)(1) actually authorize the challenged communications, as the privilege waiver does not eliminate all confidentiality obligations.
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