Christensen v. Munsen

867 P.2d 626, 123 Wash. 2d 234, 5 A.L.R. 5th 2267, 1994 Wash. LEXIS 120
CourtWashington Supreme Court
DecidedFebruary 10, 1994
Docket60080-5
StatusPublished
Cited by39 cases

This text of 867 P.2d 626 (Christensen v. Munsen) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christensen v. Munsen, 867 P.2d 626, 123 Wash. 2d 234, 5 A.L.R. 5th 2267, 1994 Wash. LEXIS 120 (Wash. 1994).

Opinions

Madsen, J.

The main issue presented is whether the trial court erred in allowing one of plaintiffs treating physicians to testify as a defense witness in this medical malpractice action. We hold that no error occurred and affirm the judgment of the trial court in favor of the defendant.

Facts

From August 11,1980, until June 8,1987, Seattle ophthalmologist Richard Munsen, the defendant herein, treated Maren Christensen, the plaintiff herein, for pars planitis and its complications. Pars planitis is an inflammation of the eye and both its cause and cure are unknown. The disease generally occurs in children and young adults and "burns out” after several years. If the complications of pars planitis can be controlled, the prognosis is good. One complication of pars planitis is cystoid macular edema (CME), which is a swelling of the retina. CME causes the central vision to become blurred and fuzzy, and, if untreated, can lead to permanent central vision loss and legal blindness. Another possible complication of pars planitis is glaucoma, an elevated pressure of the eye that ultimately leads to optic nerve damage and vision defects if not treated.

While under the defendant’s care, plaintiff developed CME secondary to her pars planitis. The defendant treated plaintiff’s CME first with oral steroids and then with steroid injections. In October 1982, the defendant injected Depo-Medrol, and in April 1983 he injected Kenalog. When plaintiff returned to defendant a few months later, she had elevated pressure in both eyes. The defendant noted that plaintiff was a probable "steroid responder”, or a person who has temporary eye pressure increases—temporary glaucoma—after being given steroids.

[238]*238Over the course of the next 5 years, the defendant administered Depo-Medrol and then Kenalog in an attempt to cure plaintiff’s pars planitis and CME. During this time, plaintiff’s eye pressures fluctuated. The plaintiff last visited the defendant on June 8, 1987. By this time her eye pressures were up and were not going down as they had previously. The defendant wanted another glaucoma specialist to recommend a course of action and referred plaintiff to Dr. Richard Mills, a professor in the ophthalmology department at the University of Washington who subspecializes in glaucoma.

When Dr. Mills saw plaintiff on July 27, 1987, her eye pressures had increased significantly, and Dr. Mills’ diagnosis was severe intractable glaucoma secondary to pars planitis. Plaintiff then underwent a lengthy series of surgeries and continuing steroid treatment to control her eye pressures and to remove membranes and cataracts.

On November 13, 1989, plaintiff filed suit against the defendant, alleging that she was legally blind as a result of his failure to follow the standard of care required of an ophthalmologist in Washington. The main issue at trial was whether plaintiff’s glaucoma and resulting legal blindness were caused by the defendant’s injections of Kenalog or by the plaintiff’s underlying eye disease, pars planitis. Plaintiff also sought to show that the defendant failed to obtain her informed consent before administering Kenalog.

After 4 hours of deliberation, the jury returned a verdict in favor of the defendant. Plaintiff then filed an appeal which the Court of Appeals certified to this court pursuant to RCW 2.06.030(d). Five issues are presented dealing with the admission of expert testimony and certain instructional rulings. Plaintiff does not, however, challenge the sufficiency of the evidence.

I

The principal issue is whether the trial court erred in allowing one of the plaintiff’s treating physicians to testify as an expert witness for the defense. At trial, Dr. Mills testified for the defense regarding the cause of plaintiff’s [239]*239glaucoma and vision loss. Dr. Mills stated that he thought the glaucoma was related more to plaintiff’s pars planitis than to her steroid treatment. Before he testified, plaintiff acknowledged in an offer of proof that Dr. Mills could testify for the defense regarding medical facts acquired during the course of her treatment, but argued that adverse opinion testimony would breach his fiduciary duty toward her. Plaintiff makes the same claim here in challenging the admission of Dr. Mills’ testimony.

We recently addressed this issue in Carson v. Fine, 123 Wn.2d 206, 867 P.2d 610 (1994), and concluded that a treating physician may testify as to both fact and opinion in a medical malpractice action regardless of whether the physician is a defense or plaintiff’s witness. Such testimony is admissible because a patient waives the physician-patient privilege upon filing a medical malpractice action. RCW 5.60.060(4)(b); Randa v. Bear, 50 Wn.2d 415, 421, 312 P.2d 640 (1957). Once the physician-patient privilege is waived, it constitutes a waiver of all of a physician’s knowledge of the physical condition asked about. Carson, at 216; 8 John H. Wigmore, Evidence § 2390, at 861 (1961).

As we stated in Carson, the fiduciary nature of the physician-patient relationship is not an independent basis to preclude a treating physician’s testimony once the patient-physician privilege has been waived. While a physician assumes certain obligations in treating and advising a patient, these obligations do not include refraining from offering adverse testimony against a patient. The physician has an independent duty to testify honestly and truthfully in a court of law, be it in favor of the plaintiff or the defense. See Carson, at 218-19.

The need for truth outweighs any residual privacy interest stemming from the physician-patient relationship once a patient puts his or her medical condition at issue by filing suit. See Torres v. Superior Court, 221 Cal. App. 3d 181, 187, 270 Cal. Rptr. 401, 404 (1990); Orr v. Sievert, 162 Ga. App. 677, 680, 292 S.E.2d 548 (1982). At that point, a treating physician may offer truthful testimony regarding [240]*240the condition at issue regardless of which party the testimony benefits. " 'Absent a privilege no party is entitled to restrict an opponent’s access to a witness, however partial or important to him, by insisting upon some notion of allegiance.’ ” Carson, at 220 (quoting Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C. 1983)). We thus conclude, pursuant to our analysis here and in Carson, that the trial court did not err in allowing one of plaintiff’s treating physicians to offer opinion evidence in favor of the defense.

Plaintiff also challenges Dr. Mills’ testimony on the basis that it violated the trial court’s own orders concerning expert testimony. On February 1, 1991, the court ruled that each party would be limited to one expert per specialty area, not to exceed two experts per specialty. The five specialty areas were pars planitis, glaucoma, pharmacology, economics, and rehabilitation. After designating its experts, the defense noted that it hoped to call Dr. Mills as well, without having him count as one of its five experts.

On June 24, the court ruled that Dr. Mills could testify, but informed the defense that if he were called,

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Cite This Page — Counsel Stack

Bluebook (online)
867 P.2d 626, 123 Wash. 2d 234, 5 A.L.R. 5th 2267, 1994 Wash. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christensen-v-munsen-wash-1994.