Sorensen v. Barbuto

2008 UT 8
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Nicholas Sorensen, Kevin Sorensen, No. 20060816
and Pamela Sorensen,
limited guardians and conservators
of Nicholas Sorensen,
Plaintiffs and Respondents.
v.
John P. Barbuto, individually,
and John P. Barbuto, M.D., F I L E D
P.C., dba Neurology in Focus,
Defendants and Petitioners, February 1, 2008
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Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 040916294
Attorneys: L. Rich Humphreys, Karra J. Porter, Salt Lake City,
for plaintiffs
Dennis C. Ferguson, Salt Lake City, for defendants
David C. Gessel, Salt Lake City, Merrill F. Nelson,
R. Chet Loftis, Mark A. Brinton, Salt Lake City,
Brent Gordon, Salt Lake City, for amici,
UHA, Utah Hospitals and Health Systems Ass’n, Utah
Medical Ass’n, and Utah Trial Lawyers Ass’n.
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 This case comes before us on a writ of certiorari to
the Utah Court of Appeals. We granted the writ of certiorari on
two questions: (1) whether by filing a personal injury suit
Nicholas Sorensen waived any duty of confidentiality encompassing
ex parte communications between himself and Dr. John Barbuto in
that suit; and (2) whether the court of appeals erred in
construing the scope of the privilege set forth in rule 506 of
the Utah Rules of Evidence and/or the scope of the exception to
the privilege set forth in subpart (d)(1). Dr. Barbuto argues
that the court of appeals erred in establishing a common law

No. 20060816 2
fiduciary-like duty of confidentiality that is beyond the normal
scope of the privilege arising from the physician-patient
relationship. We affirm the court of appeals’ decision and
remand the case to the district court for further proceedings.
BACKGROUND
¶2 In July 1999, Sorensen suffered brain and back injuries
as a passenger in a single-car accident. Dr. Barbuto treated
Sorensen for seizures and head injuries. After approximately
eighteen months, Sorensen was forced to change physicians when
his medical insurance plan dropped Dr. Barbuto from its list of
approved providers. Sorensen continued to receive medical care
from another physician.
¶3 Sorensen subsequently filed a personal injury action,
seeking compensation from the driver’s insurer. Sorensen’s
medical records were submitted into evidence and the insurer’s
defense counsel subpoenaed Dr. Barbuto to testify during the May
2003 trial. The trial was postponed until October. The course
of events during this five-month delay gives rise to Sorensen’s
claims against Dr. Barbuto. During that time, Dr. Barbuto
participated in ex parte communications with the defense team and
agreed to testify as an expert on behalf of the insurance company
against Sorensen.
¶4 The ex parte communications between Dr. Barbuto and the
insurer’s defense counsel remained unknown to Sorensen until just
prior to trial. After a motion in limine was filed, the trial
court excluded Dr. Barbuto’s testimony because the insurer’s
counsel had not designated him as an expert in a timely fashion.
Sorensen prevailed in the personal injury action.
¶5 In 2004 Sorensen filed this action against Dr. Barbuto
claiming that, as his former physician, Dr. Barbuto breached a
covenant of good faith and fair dealing, which encompasses a
physician’s duty of confidentiality, as well as other tort
causes of action. Dr. Barbuto filed a motion to dismiss under
rule 12(b)(6) of the Utah Rules of Civil Procedure. The trial
court granted the motion. The Utah Court of Appeals affirmed in
part and reversed in part, holding that (1) the dismissal of the
contract claim was appropriate since breach of confidentiality is
actionable in tort; (2) ex parte communications between opposing
counsel and Dr. Barbuto amounted to a breach of Dr. Barbuto’s
fiduciary duty of confidentiality, which gave rise to a
negligence claim; (3) Sorensen’s invasion of privacy claim failed
because disclosure to defense counsel did not equate to a public
disclosure; and (4) Sorensen could maintain a claim of
intentional infliction of emotional distress against Dr. Barbuto.

3 No. 20060816
ANALYSIS
¶6 Dr. Barbuto argues that Sorensen authorized the
ex parte communications between Dr. Barbuto and defense counsel
by placing his physical condition at issue in the personal injury
suit. Dr. Barbuto also argues that the court of appeals
improperly altered the nature of the physician-patient
relationship by imposing a fiduciary duty of confidentiality on
him. The primary issue presented by this appeal is whether Utah
recognizes a duty of confidentiality that is more extensive than
the judicial privilege afforded under the Utah Rules of Evidence
and whether that duty precludes the type of ex parte
communications alleged by Sorensen.
I. RULE 506 OF THE UTAH RULES OF EVIDENCE LIMITS THE SCOPE
OF DISCLOSURE BY A TREATING PHYSICIAN TO DISCLOSURE
AS PART OF COURT PROCEEDINGS AND TO INFORMATION
RELEVANT TO A CLAIM OR DEFENSE
¶7 Dr. Barbuto argues that the physician’s duty of care
was not breached because his disclosures to defense counsel were
permitted under Utah Code section 78-24-8(4) (2002). Dr. Barbuto
claims that section 78-24-8(4), not rule 506 of the Utah Rules of
Evidence, controls privilege in the physician-patient
relationship. Section 78-24-8(4) protects information a
physician obtains while treating a patient from disclosure as
part of court proceedings. A physician is permitted to “provide
information, interviews, reports, records, statements, memoranda,
or other data relating to the patient’s medical condition” when a
patient places a medical condition at issue in a court
proceeding. Id.
¶8 This court has previously held that “rule 506
supersedes section 78-25-8(4), and . . . rule 506 applies to both
criminal and civil proceedings.” Burns v. Boyden, 2006 UT 14,
¶ 12 & n.2, 133 P.3d 370 (citing Utah Rule of Evidence 506
advisory committee note (stating that rule 506 is intended to
supersede statutory privilege)); see also Debry v. Goates, 2000
UT App 58, ¶ 24 n.2, 999 P.2d 582 (holding that the scope of the
physician-patient privilege is exclusively controlled by rule
506).
¶9 Rule 506 privilege enables a patient to prevent a
physician “from disclosing diagnoses made, treatment provided, or
advice given, by a physician.” Utah R. Evid. 506(b). However,
the scope of this privilege is not absolute. See Burns, 2006 UT
14, ¶ 15. The rules of evidence “govern proceedings in the
courts of this State,” Utah R. Evid. 101, and they specifically

No. 20060816 4
exempt “a communication relevant to an issue of the physical,
mental, or emotional condition of the patient in any proceeding
in which that condition is an element of any claim or defense.”
Id. 506(d)(1).
¶10 Furthermore, a plain reading of rule 506(d)(1) clearly
limits the breadth of the exception to the privilege to the
confines of the court proceedings. Further, a waiver under rule
506(d)(1) does not mean that the patient has consented to the
disclosure of his entire medical history. Rule 506 is only broad
enough to allow the disclosure of information relevant to an
element of any claim or defense. Therefore, rule 506(d)(1) is a
limited waiver of privilege, confined to court proceedings, and
restricted to the treatment related to the condition at issue.
II. A PHYSICIAN’S HEALTHCARE FIDUCIARY DUTY OF CONFIDENTIALITY
CONTROLS THE RELEASE OF MEDICAL INFORMATION EVEN WHEN
PRIVILEGE HAS BEEN WAIVED UNDER RULE 506(d)(1)
¶11 Dr. Barbuto argues the court of appeals’ decision below
creates a new fiduciary duty in physicians that is beyond the
scope of rule 506 privilege. We note at the outset that a
physician’s duty of confidentiality is different and distinct
from the physician-patient testimonial privilege in rule 506.
These two zones of protection for patient records and disclosures
are not coextensive, even though they often overlap. Rule 506
governs the dissemination of information as part of a court
proceeding. The duty of confidentiality is not similarly
restricted and serves a broader purpose.
¶12 A physician’s duty of confidentiality encompasses the
broad principle that prohibits a physician from disclosing
information received through the physician-patient relationship.
The duty is rooted in the ethical underpinnings of this
relationship and serves to prevent a physician from disclosing
sensitive medical information to any third party. It arises from
the understanding that good medical care requires a patient’s
trust and confidence that disclosures to physicians will be used
solely for the patient’s welfare and that a patient’s privacy
with regard to those disclosures will be respected and protected.
¶13 Rule 506’s privilege operates to some extent as a
subsection of a physician’s duty of confidentiality. While rule
506(d)(1) provides a judicial exception to privilege that permits
disclosure of confidential information that has been placed at
issue in litigation, it does not thereby vitiate the entirety of
the physician’s duty of confidentiality. This duty remains
intact in litigation and continues to prevent a physician from

5 No. 20060816
disclosing confidential information to a patient’s friends,
family, employers, or any other third party.
¶14 Contrary to Dr. Barbuto’s argument, the court of
appeals did not create a new duty for physicians to follow. In
Debry v. Goates, the court of appeals clearly recognized a duty
of confidentiality that extends beyond rule 506’s evidentiary
privilege. 2000 UT App 58, ¶ 28, 999 P.2d 582. Specifically,
Debry states, “As part of a therapeutic relationship, a doctor or
therapist has an obligation to protect the confidentiality of his
patients that transcends any duty he has as a citizen to
voluntarily provide information that might be relevant in pending
litigation.” Id.
¶15 What was new about the court of appeals’ decision in
this case was that the court employed the term “fiduciary” in
discussing a physician’s duty of confidentiality. Sorensen v.
Barbuto, 2006 UT App 340, ¶ 16, 143 P.3d 295 (“[E]x parte
communication between a physician and opposing counsel
constitutes a breach of the physician’s fiduciary duty of
confidentiality.”). Applying this term to the healthcare
industry is far from revolutionary. Courts have long
characterized the duty physicians have to their patients as
fiduciary. See, e.g., Doe v. Cmty. Health Plan-Kaiser Corp.,
709 N.Y.S. 2d 215, 217 (App. Div. 2000) (“[A]lthough plaintiff
employs the term negligence in the first cause of action, its
gravaman [sic] is fundamentally the breach of the fiduciary duty
of confidentiality.”); Alexander v. Knight, 177 A.2d 142, 146
(Pa. Super. Ct. 1962) (“We are of the opinion that members of a
profession, especially the medical profession, stand in a
confidential or fiduciary capacity as to their patients.”);
Morris v. Consolidation Coal Co., 446 S.E.2d 648, 654 (W. Va.
1994) (“[W]e hold that a fiduciary relationship exists between a
treating physician and a claimant . . . .”); see also Fairfax
Hosp. v. Curtis, 492 S.E.2d 642, 644 (Va. 1997) (“[A] health care
provider owes a duty of reasonable care to the patient. Included
with that duty is the health care provider’s obligation to
preserve the confidentiality of information about the patient
. . . .”).
¶16 Dr. Barbuto argues the language used by the court of
appeals imposes a general fiduciary duty that requires a
physician to not only provide the appropriate medical treatment,
but also to “act only in the best interests, particularly the
financial interests of the patient.” Additionally, Dr. Barbuto
argues the term fiduciary “imposes a duty on a physician that
favors testimony favorable to his patient . . . over medically
objective truth.” We disagree. The healthcare fiduciary duty of
confidentiality articulated in Debry and restated by the court of

No. 20060816 6
appeals in this case does not impose such expansive duties on
physicians. This duty is not one of a trust fiduciary or
economic fiduciary. Rather, the duty required by Debry is one of
confidentiality with an additional focus on notifying the patient
prior to disclosure. “Before disclosing confidential records or
communications in a subsequent litigation, a physician or
therapist should notify the patient. Even if the communications
may fall into [rule 506(d)(1)’s] exception to privilege, the
patient has the right to be notified of the potential disclosure
of confidential records.” Debry, 2000 UT App 58, ¶ 28.
¶17 Accordingly, Utah law recognizes a healthcare fiduciary
duty of confidentiality. Rule 506 undoubtedly allows a treating
physician to disclose confidential information as part of a court
proceeding, but a waiver of that privilege is not a waiver of the
healthcare fiduciary duty of confidentiality. This duty of
confidentiality continues to control to whom and what information
the physician may release even when the evidentiary privilege has
been waived.
III. THE HEALTHCARE FIDUCIARY DUTY OF CONFIDENTIALITY PREVENTS
A TREATING PHYSICIAN FROM ENGAGING IN EX PARTE
COMMUNICATIONS WITH A PATIENT’S ADVERSARY
¶18 Dr. Barbuto argues that his ex parte communications
with defense counsel did not amount to a breach of his healthcare
fiduciary duty of confidentiality because the information was
disclosed as part of discovery in litigation. Our review of
relevant case law shows a split in courts as to whether ex parte
communications between a treating physician and defense counsel
are a permitted form of discovery.
¶19 Courts holding that a treating physician may
participate in ex parte communications with defense counsel have
permitted this type of informal discovery based upon factors such
as reduced litigation costs, ease of setting interviews as
opposed to depositions, increased candor in interviews, ability
to cheaply and quickly eliminate nonessential witnesses, and the
potential to settle the case early. See Doe v. Eli Lilly & Co.,
99 F.R.D. 126, 128 (D.D.C. 1983) (stating that “there are
entirely respectable reasons for conducting discovery by
[ex parte] interview,” including reducing costs, averting
scheduling conflicts, promoting candor by witnesses, and
eliminating nonessential witnesses); Trans-World Invs. v. Drobny,
554 P.2d 1148, 1151-52 (Alaska 1976) (holding there are no legal
impediments to ex parte communications and such private
conferences should be encouraged since they reduce litigation
costs and expend fewer court resources by facilitating early
settlement of cases); Green v. Bloodsworth, 501 A.2d 1257, 1259

7 No. 20060816
(Del. Super. Ct. 1985) (stating that physicians are available and
may refuse ex parte questioning like any other witness once the
patient has waived the physician-patient privilege); Stempler v.
Speidell, 495 A.2d 857, 864 (N.J. 1985) (stating that ex parte
interviews are an acceptable means of trial preparation and
should be encouraged because they reduce the cost and time of
litigation).
¶20 Other courts rejected these policy reasons and have
prohibited ex parte communications between defense counsel and a
plaintiff’s treating physician. See Perkins v. United States,
877 F. Supp. 330, 333-34 (E.D. Tex. 1995) (“[I]n a personal
injury suit a defense lawyer may not contact ex parte a
plaintiff’s non-party treating physician without the plaintiff’s
authorization.” (emphasis omitted)); Neal v. Boulder, 142 F.R.D.
325, 328 (D. Colo. 1992) (“Plaintiffs may ultimately choose to
provide a release of medical records, but they may also choose to
specifically preclude ex parte communications.” (emphasis
omitted)); Duquette v. Superior Court, 778 P.2d 634, 639 (Ariz.
Ct. App. 1989) (“[W]e do not believe that such practical concerns
as cost efficiency and ease of scheduling are of paramount
concern to a proper resolution of the issue.”); Petrillo v.
Syntex Labs., Inc., 499 N.E.2d 952, 961 (Ill. App. Ct. 1986)
(“[W]e also believe that the patient, because of the fiduciary
relationship existing between him and his physician, should have
the right to expect that his physician will provide the medical
information sought by the patient’s adversary pursuant only to
court authorized methods of discovery.”); Crist v. Moffatt, 389
S.E.2d 41, 47 (N.C. 1990) (“[C]onsiderations of patient privacy,
the confidential relationship between doctor and patient, the
adequacy of formal discovery devices, and the untenable position
in which ex parte contacts place the nonparty treating physician
supersede defendant’s interests in a less expensive and more
convenient method of discovery.” (emphasis omitted)).
¶21 We agree with the courts that have prohibited ex parte
communications between a plaintiff’s treating physician and
defense counsel for two primary reasons. First, not doing so
undermines patient expectations of physician-patient
confidentiality. Second, appropriately limiting the scope of a
treating physician’s disclosure requires judicial monitoring that
cannot occur in the context of ex parte communications.
¶22 The healthcare fiduciary duty of confidentiality exists
to foster appropriate medical treatment of patients by assuring
patients that their honest and complete disclosures of symptoms
and medical history to treating physicians will be kept
confidential. Allowing ex parte communications between a
treating physician and opposing parties in litigation would

No. 20060816 8
undermine the physician-patient relationship because patients
would lack adequate assurance that their candid responses to
questions important to determining their appropriate medical
treatment would remain confidential. The Illinois Court of
Appeals prohibited this type of ex parte communications on this
very ground. Petrillo, 499 N.E.2d at 591 (“[W]hen a physician
and defense counsel engage in an ex parte conference regarding
the confidences of the patient . . . the confidentiality which
once existed between the patient and his physician is completely
disregarded and the sanctity of the relationship existing between
a patient and his physician is thereby destroyed.”); see also
Duquette 778 P.2d at 640 (ex parte communications of this type
would be “destructive of both the confidential and fiduciary
natures of the physician-patient relationship”). We agree that
ex parte communications between a treating physician and counsel
opposing the patient should be prohibited because such
communications are destructive to the relationship that exists
between a physician and a patient.
¶23 Next, we are of the opinion that permitting ex parte
communications between a treating physician and an opposing
counsel would make it impossible for a patient or a court to
appropriately monitor the scope of the physician’s disclosures.
As stated above, a patient’s waiver of privilege does not mean
that everything disclosed to or learned by a physician in the
course of treating a patient is subject to disclosure once a
patient’s physical or mental condition is at issue in litigation.
In this respect, we agree with the following logic of the Iowa
Supreme Court:
We are concerned . . . with 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. We believe this
determination is better made in a setting in
which counsel for each party is present and
the court is available to settle disputes.
Roosevelt Hotel Ltd. v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986).
A physician is likely not trained to know what information can be
disclosed as covered by a patient’s rule 506(d)(1) waiver of
privilege and what information remains protected by the
healthcare fiduciary duty of confidentiality. Counsel in a

1 A physician’s ability to act as an expert for a patient’s
antagonist in litigation is similarly limited. A treating
physician may still be called as a factual witness by a party
opposing a patient in litigation. As part of that testimony,
physicians are permitted to provide opinions regarding the
medical information that has been released through rule
506(d)(1). Torres v. Superior Court, 221 Cal. App. 3d 181, 186
(Ct. App. 1990) (holding that a treating physician may testify on
behalf of the defense “within the parameters of the complaint”);
Carson v. Fine, 867 P.2d 610, 618-19 (Wash. 1994) (“[W]e do not
see the fiduciary nature of the physician-patient relationship as
justification for restricting access to a treating physician’s
opinions.”). Naturally, this limitation is not imposed on a
patient since there is nothing that would restrict a patient from
engaging in ex parte communications with a current or former
treating physician.
9 No. 20060816
position adverse to the patient is an equally unreliable advocate
for the patient’s interest in this situation. Thus, we believe
it is necessary to prohibit ex parte communications between a
treating physician and opposing counsel in litigation with the
physician’s patient.
¶24 Given our analysis and holding above, it is important
to emphasize the fact that opposing counsel is not foreclosed
from obtaining relevant medical information from a treating
physician. Such information may still be obtained through
traditional forms of formal discovery. Our holding should not be
construed as putting the patient in control of what medical
information is made available to opposing counsel and what is
kept private. Making this information available through formal
methods of discovery strikes a balance between enabling the
patient to protect confidential medical information that has no
relevance to the civil action and providing the patient’s
adversary access to information that is relevant to a condition
placed at issue in the case.1
¶25 In conclusion, we affirm the court of appeals’ holding
that Dr. Barbuto’s ex parte communications with opposing counsel
in Sorensen’s personal injury action was a violation of
Dr. Barbuto’s healthcare fiduciary duty of confidentiality.
IV. UTAH STATE BAR ADVISORY OPINION NO. 99-03 IS VACATED
¶26 Dr. Barbuto argues that physicians should be immune
from liability because ex parte communications of this type are
expressly permitted under Utah State Bar Advisory Opinion No. 99-
03, which reads: “No ethical rule prohibits ex parte contact

No. 20060816 10
with plaintiff’s treating physician when plaintiff’s physical
condition is at issue.” Utah State Bar Ethics Advisory Opinion
Committee, Op. 99-03 (1999). The ultimate authority on
professional conduct lies with the Utah Supreme Court. See Utah
Const. art. VIII, § 4; see also Burke v. Lewis, 2005 UT 44, ¶ 33
n.6, 122 P.3d 5336 (stating that the Utah Supreme Court is not
bound by the Ethics Advisory Committee’s opinions).
¶27 Because it would be illogical to permit attorneys to
lead physicians into breaching their duty of confidentiality, we
vacate Utah State Bar Ethics Advisory Opinion Committee Opinion
99-03 and instruct lawyers to confine their contact and
communications with a physician or therapist who treated their
adversary to formal discovery methods.
¶28 The prior effectiveness of this advisory opinion,
however, does not shelter Dr. Barbuto from liability because, as
the court of appeals correctly held, Opinion 99-03 governed the
conduct of attorneys, not physicians. Additionally, at the time
the ex parte communications took place in this case, Utah law
under Debry already required physicians to provide notification
prior to providing medical information as part of a judicial
proceeding.
CONCLUSION
¶29 Ex parte communications between a former or current
treating physician and counsel opposing a patient in court are
prohibited. The information held by a physician that is relevant
to a judicial proceeding may be obtained only through traditional
methods of discovery. Moreover, a physician must adhere to the
healthcare fiduciary duty of confidentiality even when the
patient has waived his rule 506 privilege by placing his physical
or mental condition at issue in a judicial proceeding.
Accordingly, we affirm the court of appeals’ decision and remand
the case to the district court for further proceedings.
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¶30 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.