Phoenix Children’s Hospital v. Grant (CA1 11/1/11)

The ruling in this special action is that Duquette (1989) – defense counsel may have no ex parte communications with the plaintiff’s physicians without the plaintiff’s consent – doesn’t bar a hospital’s counsel from talking to its employees.

In this action against a hospital that had treated the patient intensively for several problems for years, Plaintiffs first got the trial court to order that defense counsel could have no contact with physicians other than the ones it was suing and then set the deposition of a hospital doctor whom they had not (yet, at least) sued. The trial court prohibited the hospital’s counsel from talking to him; the hospital took special action.

The Court of Appeals distinguishes Duquette because that case didn’t deal with the employer-employee issue. This decision is based on the law of agency: the hospital can talk to its employees because of the agency relationship, by which it is charged with – and liable for –their knowledge. That is independent of the doctor-patient privilege.

The court then opines that the privilege vaguely limits what some hospital employees may tell other hospital employees, dicta of limited use in this opinion but which will cause mischief down the line.

(link to opinion)

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