Utah Supreme Court

Can treating physicians communicate ex parte with opposing counsel in Utah? Sorensen v. Barbuto Explained

2008 UT 8
No. 20060816
February 1, 2008
Affirmed

Summary

Dr. Barbuto treated Sorensen for brain injuries from a car accident, then later engaged in ex parte communications with opposing counsel and agreed to testify as an expert against Sorensen in his personal injury case. Sorensen sued Dr. Barbuto for breach of confidentiality and other tort claims.

Analysis

The Utah Supreme Court in Sorensen v. Barbuto established clear boundaries for physician-patient confidentiality in litigation, holding that treating physicians cannot engage in ex parte communications with opposing counsel even when patients have waived evidentiary privilege.

Background and Facts

Nicholas Sorensen suffered brain injuries in a car accident and received treatment from Dr. Barbuto for seizures and head injuries. When Sorensen filed a personal injury lawsuit, his medical records were submitted into evidence. During a five-month trial delay, Dr. Barbuto participated in ex parte communications with the defense team and agreed to testify as an expert against his former patient. Sorensen only learned of these communications just before trial and subsequently sued Dr. Barbuto for breach of confidentiality.

Key Legal Issues

The court addressed whether filing a personal injury suit waives confidentiality duties for ex parte communications between physicians and opposing counsel, and whether Utah recognizes a healthcare fiduciary duty of confidentiality extending beyond the scope of Rule 506 physician-patient privilege.

Court’s Analysis and Holding

The court distinguished between evidentiary privilege under Rule 506 and the broader healthcare fiduciary duty of confidentiality. While Rule 506(d)(1) permits disclosure of medical information relevant to claims in court proceedings, this waiver does not eliminate the physician’s ongoing duty of confidentiality. The court held that ex parte communications undermine patient expectations of confidentiality and make it impossible to appropriately monitor the scope of physician disclosures. The court also vacated Utah State Bar Advisory Opinion 99-03, which had permitted such communications.

Practice Implications

This decision requires attorneys to obtain medical information from treating physicians only through formal discovery methods such as depositions and written discovery. The ruling protects the physician-patient relationship while still allowing opposing parties to access relevant medical information through appropriate judicial oversight.

Original Opinion

Link to Original Case

Case Details

Case Name

Sorensen v. Barbuto

Citation

2008 UT 8

Court

Utah Supreme Court

Case Number

No. 20060816

Date Decided

February 1, 2008

Outcome

Affirmed

Holding

Ex parte communications between a treating physician and counsel opposing the patient in litigation violate the physician’s healthcare fiduciary duty of confidentiality, even when the patient has waived physician-patient privilege under Rule 506.

Standard of Review

Not specified in opinion

Practice Tip

When representing clients in medical malpractice or personal injury cases, obtain medical information from treating physicians only through formal discovery methods, as ex parte communications violate the physician’s duty of confidentiality.

Need Appellate Counsel?

Lotus Appellate Law handles appeals before the Utah Court of Appeals, Utah Supreme Court, California Court of Appeal, and the United States Court of Appeals for the Tenth Circuit.

Related Court Opinions

    • Utah Supreme Court

    Osborne v. Adoption Center of Choice

    May 2, 2003

    A putative father who fails to comply with Utah’s statutory requirements for preserving parental rights cannot obtain extraordinary relief to challenge an adoption proceeding without first establishing his right to such protection under Utah law.
    • Adoption and Guardianship
    • |
    • Appellate Procedure
    • |
    • Constitutional Rights (Criminal)
    • |
    • Jurisdiction
    Read More
    • Utah Court of Appeals

    State v. Correa

    May 9, 2024

    An officer’s knowledge that a defendant drove without a license two months earlier does not create reasonable suspicion that the defendant is currently driving without a license to justify an investigatory stop.
    • Constitutional Rights (Criminal)
    • |
    • Evidence and Admissibility
    • |
    • Search and Seizure
    • |
    • Standard of Review
    Read More
About these Decision Summaries

Lotus Appellate Law publishes these summaries to keep practitioners informed — not as legal advice. Each case turns on its own facts. If a decision here is relevant to your matter, we’re happy to discuss it.