JOAN B. KITZMILLER, EXECUTRIX
OF THE ESTATE OF EUGENE O. KITZMILLER,
HONORABLE JOHN L. HENNING, JR.,
JUDGE OF THE CIRCUIT COURT OF
RANDOLPH COUNTY; PAUL EUGENE
NEFFLEN, M.D., AND DAVIS MEMORIAL
HOSPITAL, A WEST VIRGINIA CORPORATION,
William A. Druckman, Esq.
Preiser Law Firm
Charleston, West Virginia
Attorney for Petitioner
John E. Busch, Esq.
Peter G. Zurbuch, Esq.
Busch & Talbott, L.C.
Elkins, West Virginia
Attorneys for the Respondent Paul Eugene Nefflen, M.D.
David A. Sims, Esq.
Wallace, Harris and Sims
Elkins, West Virginia
Attorney for Respondent Davis Memorial Hospital
JUSTICE NEELY delivered the Opinion of the Court.
1. A fiduciary relationship exists between a physician
and a patient.
2. When a patient files a lawsuit in malpractice, he
impliedly consents to a physician's releasing medical information
related to the condition he has placed at issue. The patient's
implicit consent, however, is obviously and necessarily limited; he
does not consent, simply by filing suit, to his physician's
discussing his medical confidences with third parties outside
court-authorized discovery methods, nor does he consent to his
physician's discussing the patient's confidences in an ex parte
conference with the patient's adversary.
3. The formal discovery methods provided in the West
Virginia Rules of Civil Procedure set forth the exclusive means by
which an adverse party may obtain pretrial discovery of medical
testimony relating to a patient's medical condition. Private
nonadversary interviews with a patient's attending physicians by
the inquiring party's counsel are not contemplated under the Rules
of Civil Procedure.
Eugene O. Kitzmiller and Joan B. Kitzmiller filed this
malpractice action on 7 May 1992 alleging that Dr. Paul Eugene
Nefflen, Dr. Nicholas Martin and Davis Memorial Hospital
(hereinafter "the hospital") were negligent in failing to diagnose
and treat in a proper and timely manner Mr. Kitzmiller who suffered
from cancer of the colon. Mr. Kitzmiller died of cancer. Mr.
Kitzmiller's widow and executrix is now the sole surviving
On 3 September 1992 Davis Memorial Hospital served the
Kitzmillers with sets of interrogatories and requests for
production of documents. Mrs. Kitzmiller refused to execute an
authorization that the hospital had appended to one of its
interrogatories that would have allowed ex parte interviews with
Mr. Kitzmiller's treating physicians. Mrs. Kitzmiller instead
provided a medical release that excluded ex parte contacts with
The hospital filed a motion to compel discovery on 28 May 1993. On 18 June 1993 the Circuit Court of Randolph County issued an order that provides, in pertinent part, that Mrs. Kitzmiller "provide a limited medical authorization that does not authorize ex parte communications for a period of 30 days from the time of this order accompanied by a list of all known medical providers . . .
and . . provide the defendants a general medical authorization at
the end of the thirty (30) day period which permits the
authorization of ex parte communications with medical providers."
On 16 July 1993 Mrs. Kitzmiller petitioned for a writ of
prohibition to prohibit enforcement of the Circuit Court's order
permitting ex parte communications. The sole issue presented here,
then, is whether opposing counsel conducting discovery in civil
litigation may interview an injured party's treating physician ex
parte or is limited to formal discovery methods. We find that
opposing counsel is restricted to formal discovery in obtaining
medical information; therefore, we award the writ.
The hospital argues that the absence of a physician-
patient privilege in West Virginia negates the existence of a
confidential physician-patient relationship. Furthermore, by
placing the decedent's medical condition at issue, Mrs. Kitzmiller
has waived any physician-patient privilege that might otherwise
have existed. Under the hospital's waiver theory, defense counsel
should be allowed to conduct ex parte interviews of a plaintiff's
As the hospital asserts, West Virginia has not codified
a physician-patient privilege. However, the absence of such a
privilege contemplates the release of medical information only as
it relates to the condition a plaintiff has placed at issue in a
lawsuit; it does not efface the highly confidential nature of the
physician-patient relationship that arises by express or implied
This Court has recognized that a fiduciary relationship
[W]herever a trust, continuous or temporary, is specially reposed in the skill or integrity of another, or the property or pecuniary interests, in the whole or in part, or the bodily custody, of one person, is placed in the charge of another.
McKinley v. Lynch, 58 W.Va. 44, 57, 51 S.E. 4, 9 (1905). Although
we have not had occasion to address the fiduciary nature of the
physician-patient relationship, all reported cases dealing with
this point hold that a fiduciary relationship exists between a
physician and a patient.See footnote 1 Information is entrusted to the doctor
in the expectation of confidentiality and the doctor has a
fiduciary obligation in that regard. As the Court in Hammonds v.
Aetna Casualty & Surety Company, 237 F.Supp. 96, 102 (N.D. Ohio
1965) put it:
[T]hose confidences in the trust of a physician are entitled to the same consideration as a res in the control of a trustee, and the activities of a doctor in regard to those confidences must be subjected to the same scrutiny as the activities of a trustee in supervising a res."
This proposition comes as no surprise to the medical
profession. The Code of Medical Ethics itself recommends the
The confidences... should be held as a trust and should never be revealed except when imperatively required by the laws of the state. Principles of Medical Ethics of A.M.A. Ch. II, sec. 1 (1943).
Private nonadversary interviews of a doctor by adverse
counsel threaten to undermine the confidential nature of the
physician-patient relationship. It is well settled that when a
patient files a lawsuit in malpractice, he impliedly consents to a
physician's releasing medical information related to the condition
he has placed at issue. The patient's implicit consent, however,
is obviously and necessarily limited; he does not consent, simply
by filing suit, to his physician's discussing his medical
confidences with third parties outside court- authorized discovery
methods, nor does he consent to his physician's discussing the
patient's confidences in an ex parte conference with the patient's
adversary.See footnote 2
The danger of ex parte interviews of a doctor by adverse
counsel is that the patient's lawyer is afforded no opportunity to
object to the disclosure of medical information that is remote,
irrelevant, or compromising in a context other than the lawsuit at
hand. The Iowa Supreme Court has expressed its concern:
[W]ith the difficulty of determining whether a particular piece of information is relevant to the claim being litigated. Placing the burden of determining relevancy on an attorney, who does not know the nature of the confidential disclosure about to be elicited is risky. Asking the physician, untrained in the law, to assume this burden is a greater gamble and is unfair to the physician.
Roosevelt Hotel, Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 357
A prohibition against ex parte interviews, in contrast,
protects both the patient and his physician from the danger that
adverse counsel may abuse his opportunity to interrogate the
physician by privately inquiring into facts or opinions about the
patient's mental and physical health or history that may neither be
relevant to the patient's lawsuit nor lead to the discovery of
Moreover, the presence of the patient's counsel at the
doctor's interrogation permits the patient to know what his
doctor's testimony is, allays a patient's fears that his doctor may
be disclosing personal confidences, and thus helps preserve the
complete trust between doctor and patient that is essential to the
successful treatment of the patient's condition. As Nelson v.
Lewis, 130 N.H. 106, 111, 534 A.2d 720, 723 puts it:
[W]hile ex parte interviews may be less
expensive and time-consuming than formal
discovery and may provide a party some means
of equalizing tactical advantage, these
interests are insignificant when compared with
the patient-plaintiff's interest in maintain
ing the confidentiality of personal and
possibly embarrassing information, irrelevant
to the determination of the case being tried.
In sum, we conclude that the absence of a formal codified
physician-patient privilege does not destroy the confidential
nature of the doctor-patient relationship. By filing a malpractice
suit, a patient consents only to the release of medical information
relevant to the condition the patient has placed at issue. Ex
parte interviews are prohibited because they pose the danger of
disclosing irrelevant medical information that may compromise the
confidential nature of the doctor-patient relationship without
advancing any legitimate object of discovery.
The hospital argues that ex parte discussions are not
prohibited by the rules of discovery. Discovery rules, the
hospital maintains, do not purport to set forth the exclusive
methods by which relevant information may be obtained. Absent a
court rule to the contrary, the right of defense counsel to conduct
informal interviews of a plaintiff's treating physician should be
The methods by which discovery may be obtained, under the
West Virginia Rules of Civil Procedure, are set out in Rule 26(a),
W.V.R.C.P. That section provides:
Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examination; and requests for admission.
Obviously, a private interview of an adversary witness is not one
of the methods of discovery contemplated by the Rules.
The Rules provide several methods by which discovery of
examining physicians may be obtained. If the physician is expected
to be called as an expert witness, certain information may be
obtained by way of interrogatories pursuant to Rule 26(b)(4)(A),
The most commonly used discovery device for determining
the extent of a party's injuries is set forth in Rule 36(a),
W.V.R.C.P. pursuant to which defendants may obtain an order
compelling plaintiffs to submit to a physical examination by a
Rule 35(b), W.V.R.C.P. provides that a plaintiff may
obtain a copy of the report of a Rule 36(a) examination, but that
if the plaintiff so elects, defendant thereupon will be entitled to
receive copies of all reports of any prior or subsequent medical
examination of the plaintiff concerning the same condition. Under
the procedure just set forth in Rule 35(b), W.V.R.C.P., defendant's
attorney is permitted to obtain much, if not all, of the
information that they currently seek in the action before us.
Moreover, Rule 35, W.V.R.C.P. is not preemptive of other discovery
devices. Rule 35(b)(3), W.V.R.C.P. expressly does not preclude
discovery of a report of an examining physician or the taking of a
Further, Rule 34, W.V.R.C.P., which provides for, inter
alia, the production of documents and things, has recently been
amended to allow easier access to information held by third parties
in the event that medical records are not in the care and custody
of or forthcoming from the plaintiffs.
In short, the hospital has made no real showing that
formal discovery procedures are inadequate to uncover the
information sought by the private interview. No authority exists
under applicable discovery rules, either in West Virginia or in
other jurisdictions, for private interviews with plaintiff's
physicians. No reason other than expense has been suggested or
occurs to us to justify the unwarranted (unauthorized) disclosures
of confidential information in private nonadversary interviews and
we believe that the potential abuses of ex parte interviews is so
enormous that expense alone is no reason to accede to the
Accordingly, we hold that the formal discovery methods
provided in the West Virginia Rules of Civil Procedure set forth
the exclusive means by which an adverse party may obtain pretrial
discovery of medical testimony relating to a patient's medical
condition. Private nonadversary interviews with a patient's
attending physicians by the inquiring party's counsel are not
contemplated under the Rules.
We do not, however, intend by this holding to discourage
a physician, with the full permission of the patient and his
lawyer, from affording defense counsel a personal interview. Many
cases never reach litigation, and surely if such an interview
serves to dispose of a patient's claim before litigation or before
a trial on the merits, it should be encouraged.
Footnote: 1 See, Petrillo v. Syntex Laboratories, Inc. 499 N.E.2d 952 (Ill.App. 1 Dist. 1986); Stafford v. Schultz, 42 Cal.2d 767, 270 P.2d1 (1954); Hales v. Pittman, 118 Ariz. 305, 576 P.2d 493 (1978); State ex rel. Stufflebam v. Applequist, 694 S.W.2d 882 (Mo.App.Ct.1985); Henkin, Inc. v. Berea Bank & Trust Co., 566 S.W.2d 420 (Ky.App.Ct. 1978); Henricks v. James, 421 So.2d 1031 (Miss.Sup.Ct.1982); Lilly v. Commissioner 188 F.2d 269 (4th Cir. 1951), rev'd on other grds., 343 U.S. 90, 72 S.Ct. 497, 96 L.Ed. 769 (1952); Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964); Hewett v. Bullard, 258 N.C. 347, 128 S.E.2d 411 (1962); In re Hendricks' Estate, 110 N.W.2d 417 (Sup.Ct.N.D. 1962); Mattingley v. Sisler, 198 Okl. 107, 175 P.2d 796 (1948); Batty v. Arizona State Dental Board, 57 Ariz. 239, 112 P.2d 870 (1941); Foster v. Brady, 198 Wash. 13, 86 P.2d 760 (1939); Davis v. Rodman, 147 Ark. 385, 227 S.W. 612 (1921); Ulbrand v. Bennett, 83 Or. 557, 163 P. 445 (1917); Alexander v. Knight, 197 Pa.Super. 79, 177 A.2d 142 (1962); Allison v. Blewett, 348 S.W.2d 182 (Tex.Civ.App.1961); Moore v. Webb, 345 S.W.2d 239 (Mo.App.1961).
Footnote: 2 See, Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (Sup.Ct. 1975); Petrillo v. Syntex Laboratories, Inc., 499 N.E.2d 952, 959 (Ill.App.1 Dist. 1986); Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C. 1990); Ritter v. Rush-Presbyterian-St. Luke's, 532 N.E.2d 327, 330 (Ill.App. 1 Dist. 1988); Karsten v. McCray, 509 N.E.2d 1376, 1383-84 (Ill.App.2.Dist. 1987); Jordan v. Sinai Hosp. of Detroit, Inc., 429 N.W.2d 891, 899 (Mich.App. 1988); Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333, 335 (Sup.Ct. 1976); Jaap v. District Court of Eighth Judicial Dist., Mont., 623 P.2d 1389, 1391 (Mont. 1981).