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