Bulsara v. Watkins , 387 S.W.3d 165 ( 2012 )

PAUL E. DANIELSON, Justice.

| Appellant Ketan Bulsara, Individually and as Administrator of the Estate of Simi Ketan Bulsara, deceased, and on behalf of the wrongful-death beneficiaries of Simi Ketan Bulsara, appeals from the judgment of the circuit court entered in favor of appellee Dr. Julia Watkins. Dr. Bulsara originally appealed to the court of appeals, and that court affirmed the judgment. See Bulsara v. Watkins, 2009 Ark. App. 409, 319 S.W.3d 274. He then petitioned this court for review, which we granted; however, we dismissed the appeal without prejudice for lack of a final order. See Bulsara v. Watkins, 2010 Ark. 453, 2010 WL 4680270. Dr. Bulsara now appeals from the final order entered by the circuit court and raises three points on appeal. Specifically, he claims that the circuit court erred in denying his motion for new trial: (1) where defense counsel engaged in ex parte contact with a nonparty, treating physician; (2) where a defense |2expert refused to disclose the information reviewed in his investigation; and (3) where defense counsel improperly acquired confidential information from an expert who previously consulted with Dr. Bulsara and his former counsel. We reverse and remand.

The facts, in brief, are these. On April 19, 2004, Dr. Bulsara, a neurosurgeon by occupation, filed a medical-malpractice and wrongful-death action against Dr. Watkins and St. Vincent Doctor’s Hospital, stemming from the stillbirth of his child, Baby Simi. The complaint was later amended to include Arkansas Women’s Center, P.A., as a defendant, but it and St. Vincent Doctor’s Hospital were later dismissed. The matter was ultimately tried by a jury, who returned a judgment in favor of Dr. Watkins, which was filed on November 3, 2006. On November 17, 2006, Dr. Bulsara filed a motion for new trial, in which he asserted that (1) the circuit court should have declared a mistrial after the defense’s expert referred to Dr. Bulsara’s settlement with a third party; (2) the defense’s expert witness, Dr. McKelvey, should have been disqualified as an expert; (3) Dr. Watkins’s counsel, Phil Malcom, should have been disqualified for misconduct relating to his contact with Dr. Rosey Seguin, Mrs. Bulsara’s treating physician and Dr. Watkins’s partner at Arkansas Women’s Center, without Mrs. Bulsara’s consent; (4) Dr. Watkins’s counsel improperly impeached Dr. Bulsara’s expert witness during closing argument; (5) Dr. Watkins violated the circuit court’s ruling on a motion in limine when she elicited certain testimony; (6) Dr. Watkins improperly impeached witnesses; and (7) the “empty chair”-defendant instruction prejudiced the jury. On November 22, 2006, the circuit court entered an order granting a motion by Dr. Watkins for an extension of time to respond to Dr. Bulsara’s new-trial motion.

On November 28, 2006, Dr. Bulsara filed a motion to vacate or set aside judgment, which he based on the grounds set forth in his motion for new trial. Dr. Watkins responded to the motion, stating that the “alleged errors, mistakes, or miscarriages of justice” asserted by Dr. Bul-sara had been previously ruled on by the circuit court and that no new law or facts were presented that would warrant vacating the jury’s verdict based on the previous rulings. On December 15, 2006, the circuit court denied Dr. Bulsara’s motion for new trial.

On January 9, 2007, Dr. Bulsara filed his notice of appeal; however, that same day, the circuit court entered its order denying Dr. Bulsara’s motion to vacate or set aside. Accordingly, Dr. Bulsara filed an amended notice of appeal. As already noted, the matter was. appealed to the court of appeals, which affirmed the judgment of the circuit court. We granted review, but then dismissed the appeal for lack of a final order. A final order was obtained, and Dr. Bulsara now appeals.

I. Dr. Watkins’s Motions

As an initial matter, we must decide two pending motions that were filed with this court and submitted with the case. In a motion to dismiss the appeal, Dr. Watkins asserts that at the time the subsequent notice of appeal was filed, following our dismissal and the circuit court’s entry of a final order, there was no personal representative pursuing the action due to Dr. Bulsara’s prior discharge as personal representative. For this reason, she contends, the notice of appeal was a nullity, and this court lacks jurisdiction to hear the instant appeal.

The exhibits attached to the motion reflect that on February 14, 2007, Dr. Bulsara petitioned the probate court to approve a settlement and authorize payment of attorney’s fees and expenses, and an order approving such was entered on February 16, 2007. On March 2, 2007, Dr. Bulsara filed a petition to authorize the final distribution of estate assets, and on March 9, 2007, the probate court entered an order approving the report of final distribution, discharging the administrator, and closing the administration of the estate.

In Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005), we observed that under Arkansas Code Annotated § 16 — 62—102(b), every cause of action for wrongful death shall be brought by and in the name of the personal representative, or, if there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. In so noting, we held that, where the original complaint in the case failed to include all the heirs at law as parties to the suit, the original complaint was a nullity. See Brewer, 362 Ark. 1, 207 S.W.3d 458. Dr. Watkins relies on Brewer and other similar cases for her proposition that Dr. Bulsara’s notice of appeal was a nullity. We believe, however, that Dr. Watkins’s reliance is misplaced.

In Bailey v. Rockafellow, 57 Ark. 216, 21 S.W. 227 (1893), cited by Dr. Bulsara in his response to the motion, this court held that the discharge of an administrator, before judgment was rendered, was no bar to his prosecution of the action.¹ There, Bailey had been appointed administrator of the estate and, in that capacity, brought an action to foreclose a deed of trust and collect a note. During the pendency of the action, after filing a final settlement, he was discharged as the administrator. Notwithstanding his discharge, he prosecuted the action, | .^without objection. On appeal, the appellees challenged Bailey’s prosecution of the action after his discharge, and this court held:

The first question to be decided is raised by the contention of appellees to the effect that Bailey had no right to prosecute the action as administrator after his discharge. Regularly the action should have been revived in the name of the proper parties, but the court did not lose jurisdiction of it. The discharge was no bar to the action. The defendants could have taken advantage of it by a supplemental answer in the nature of a plea in abatement. But they had a right to waive it, and permit the cause to be tried upon its merits, without revivor, and did so with notice of the fact, by a failure to plead it in any manner. Spalding v. Wathen [70 Ky. 659], 7 Bush 659 [(1871)]; Mansfield’s Digest, secs. 5028, 5031.

57 Ark. at 218-19, 21 S.W. at 228.

In accord with Bailey, we hold that Dr. Bulsara’s discharge as administrator did not bar his ability to obtain a final order or prosecute the instant appeal. There are, too, the facts that this is Dr. Watkins’s first objection since the discharge was entered, and it was Dr. Watkins’s failure to dismiss her cross-claim that required this court to dismiss Dr. Bulsara’s prior appeal. We therefore deny Dr. Watkins’s motion to dismiss the appeal.

Because we deny the motion to dismiss on the basis that Dr. Bulsara’s discharge did not preclude him from obtaining a final order or pursuing the instant appeal, we need not consider the effect of an order by the probate court reopening the estate and reappointing Dr. Bulsara. Accordingly, Dr. Watkins’s motion to set aside the probate court’s order is moot.

II. Ex Parte Contact with Treating Physician

For his first point on appeal, Dr. Bulsara argues that he is entitled to a new trial because Dr. Watkins’s defense counsel, Phil Malcom, violated Arkansas Rule of Civil Procedure 35(c)(2) and Arkansas Rule of Evidence 503(d)(3)(B), which prohibit ex parte contact by an adverse party with a patient’s nonparty, treating physician, when he consulted with Dr. Seguin regarding Mrs. Bulsara’s case without consent. Dr. Bulsara contends that because Dr. Seguin was a treating physician not named as a party to the lawsuit, Malcom violated the rules when he precluded Dr. Bulsara from speaking with her without Malcom present and objected, on Dr. Seguin’s behalf, to Dr. Bulsara’s discovery request. Dr. Bulsara asserts that Malcom cannot circumvent either the rules prohibiting ex parte contact or the physician-patient privilege simply by representing both Dr. Seguin and Dr. Watkins. He contends that the proper sanction for Mal-com’s actions is a new trial from which Malcom is disqualified, due to Maleom’s unfettered access to Dr. Seguin and her confidential communications, all without consent.

Dr. Watkins counters that she and Dr. Seguin, as well as the clinic at which they were partners, had the right to retain counsel of their choice. She states that Ark. R. Civ. P. 35(c)(2) and Ark. R. Evid. 503(d)(3)(B) are discovery rules designed to protect patient privacy and do not limit the rights of doctors and clinics to select their attorneys. She avers further that Dr. Bulsara has failed to present any proof of prejudice. However, Dr. Bulsara asserts that he did suffer prejudice, specifically, that Malcom restricted Dr. Bulsara’s communication with a treating physician, enjoyed improper access to confidential information, and “poisoned the well” with respect to Dr. Seguin.

This court has held that a decision on whether to grant or deny a motion for new trial lies within the sound discretion of the circuit court. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). We will reverse a circuit court’s order granting a motion for a|7new trial only if there is a manifest abuse of discretion. See id. A circuit court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous. See id.

Rule 503 (d)(3)(B) of the Arkansas Rules of Evidence provides, in pertinent part, that “[a]ny informal, ex parte contact or communication with the patient’s physician or psychotherapist is prohibited, unless the patient expressly consents.” Ark. R. Evid. 503(d)(3)(B) (2011). This court has previously held that the rule “by its plain language forbids ex parte communication with the patient’s physician in the absence of the patient’s consent.” Kraemer v. Patterson, 342 Ark. 481, 492, 29 S.W.3d 684, 690 (2000). Similarly, Ark. R. Civ. P. 35(c)(2) (2011) provides, in pertinent part, that “[a]ny informal, ex parte contact or communication between a party or his or her attorney and the physician or psychotherapist of any other party is prohibited, unless the party treated, diagnosed, or examined by the physician or psychotherapist expressly consents.” Ark. R. Civ. P. 35(c)(2) (2011). At issue here is whether Malcom’s representation of Dr. Seguin and Dr. Watkins resulted in a violation of these rules. We hold that it did.

According to an affidavit of Dr. Seguin submitted to the circuit court, she and Dr. Watkins discussed the Bulsara case and decided they “needed to obtain the services of an attorney, because we were fearful that claims or a lawsuit would be filed against us over the death of his baby.” She stated that she and Dr. Watkins “agreed that we wanted Phil Malcom to represent each of us and our group, Arkansas Women’s Center, with regard to claims or litigation that could be pursued against us by Dr. and Mrs. Bulsara over the death of their baby.” She stated that Dr. Watkins later relayed to her that Malcom “had accepted the request that she and I had made to have him represent each of us as well as Arkansas Women’s Center with regard to [the possible] claims or litigation.” Notably, she also stated that she “related information to [Malcom]” that she “felt he needed to know,” that he requested her to provide information to him for use in his representation of her, and that she “provided written information to him” for use in his representation of her with regard to any claims or lawsuits filed in the Bulsara matter. It is this information with which Dr. Bulsara was concerned that serves as the basis for his arguments on appeal.

We in no way dispute Dr. Watkins’s claim that a physician can seek legal counsel on issues of concern, just as that holds true for any other person. And, Dr. Se-guin was free to seek.counsel from Mal-com. We wish to make clear, however, that she was still bound by her physician-patient privilege with Mrs. Bulsara.² It is once the instant lawsuit was filed and failed to name Dr. Seguin, that a conflict in representation arose for Malcom, who also represented Dr. Watkins, a named defendant, or party, that ran afoul of our rules set forth above.

We find persuasive the reasoning of the Illinois Appellate Court in Baylaender v. Method, 230 Ill.App.3d 610, 171 Ill.Dec. 797, 594 N.E.2d 1317 (1992), cited to this court by Dr. Bulsara. In Baylaender, it was alleged that the decedent, Maria, died as a result of Dr. Method’s failure to diagnose her breast cancer. Prior to trial, Baylaender moved in limine to bar the testimony of Dr. Southwick for the defense. See Baylaender, 230 Ill.App.3d 610, 171 Ill.Dec. 797, 594 N.E.2d 1317. Dr. Southwick was a physician who treated Maria subsequent to Dr. Method’s alleged negligence. See id. Baylaender contended that Dr. Southwick violated the physician-patient privilege when he discussed Maria with an attorney assigned to represent him by his malpractice insurance carrier although he was not sued. See id. The same attorney was subsequently assigned by the carrier to represent the defendant, Dr. Method. See id. The circuit court denied the motion, and Baylaen-der appealed. See id.

On appeal, Baylaender argued that Dr. Southwiek should have been barred from testifying because he violated Maria’s physician-patient privilege when he, without her consent and prior to any suit being filed, discussed her care with an attorney appointed by his insurance carrier to represent him. See id. The violation was exacerbated, Baylaender claimed, when after the suit was filed, the insurer assigned another attorney to represent Dr. South-wick, and Dr. Southwick’s original attorney was assigned by the same insurance carrier to represent the defendant. See id.

The appeals court agreed with Baylaender and found that the transfer of Dr. Southwick’s attorney to represent the defendant made it impossible to build “a ‘Chinese wall’ between attorneys to prevent information sharing.” Id. at 1326. Noting that such separation would be difficult with two attorneys and the same insurer, the court found that it was “absolutely impossible” where the same attorney was to represent the defendant after having represented the treating physician and taking with him any confidential information the treating physician may have revealed. Id. The court concluded that the transfer of counsel “fatally compromised” the plaintiffs rights to protect her medical secrets from disclosure to the defendant. Id. at 1327.

Likewise, Mrs. Bulsara’s right to protect her confidential communications with Dr. Seguin was fatally compromised when Malcom continued his representation of Dr. Watkins, after the filing of the complaint, having taken with him any confidential information relayed to him by Dr. Se-guin. It was Malcom’s “taking” of this information, as counsel for a defendant-physician, that violated Ark. R. Evid. 503 and Ark. R. Civ. P. 35, and it was the “taking” of this information that served as the basis on which he should have removed himself from the representation.

While Malcom attempts to justify his communications with Dr. Seguin by virtue of the fact that he also represented Dr. Seguin’s practice, Arkansas Women’s Center, P.A., also a defendant, we are not so swayed. The policy behind the physician-patient privilege is to encourage patients to communicate openly with their physicians and to prevent physicians from revealing the infirmities of their patients. See Arkansas State Med. Bd. v. Leonard, 267 Ark. 61, 590 S.W.2d 849 (1979). Here, Dr. Seguin was Mrs. Bulsara’s treating physician, and Rule 503(d)(3)(B) explicitly forbade any communication with her, other than the furnishing of medical records and communications in the context of formal discovery, unless Mrs. Bulsara consented. See also Ark. R. Civ. P. 35(c)(2). “‘Any communication’” is an inclusive term. Harlan v. Lewis, 982 F.2d 1255, 1263 (8th Cir.1993). We therefore reject Malcom’s attempted justification, because like our federal district court, we will not permit the clear intent of our rules to be so circumvented. See Harlan v. Lewis, 141 F.R.D. 107 (E.D.Ark.1992).³

Under Ark. R. Civ. P. 59(a)(1),

[a] new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:

(1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial.

A party moving for new trial on this basis must show that his or her rights have been materially affected by demonstrating a reasonable possibility of prejudice. See Winkler v. Bethell, 362 Ark. 614, 210 S.W.3d 117 (2005). It is clear to this court that Dr. Bulsara demonstrated a reasonable possibility of prejudice, in light of Malcom’s continued representation of Dr. Watkins after the filing of Dr. Bulsara’s lawsuit while in possession of confidential information and in contravention of our rules. Accordingly, we reverse the circuit court’s denial of Dr. Bulsara’s motion for new trial and remand for a new trial. Because we reverse and remand on this issue, we need not address Dr. Bulsara’s remaining points on appeal.

Reversed and remanded. Motion to dismiss denied; motion to set aside moot.

BROWN, J., concurs in part and dissents in part. HANNAH, C.J., and GUNTER and BAKER, JJ., concur in part and dissent in part.

1 . This court granted Dr. Bulsara permission to supplement his response to the motion with an order from the probate court, filed November 9, 2011, reopening die administradon of the estate and reappointing Dr. Bulsara as administrator.

2 . Indeed, any communications between Dr. Seguin and Malcom were protected under the attorney-client privilege. See Ark. R. Evid. 502 (2011); Ark. R. Prof’l Conduct 1.6 (2011).

3 . While Dr. Watkins relies on this court’s decision in Courteau v. St. Paul Fire & Marine Insurance Co., 307 Ark. 513, 821 S.W.2d 45 (1991), for her proposition that Malcom’s communications were permissible in light of his representation of the practice, we And Courteau inapposite. There, the attorney-client privilege was at issue, rather than the physician-patient privilege at issue in the instant case.