Pearce v. Ollie ( 1992 )

BOYLE, Justice

specially concurring.

I concur with the majority in dismissing the appeal. However, I register my genuine concern over an issue not addressed by the lead opinion. In this case defense counsel made ex parte contact with the patient’s treating physician. I am opposed to such a practice because I.C. § 9-203(4)(C) clearly provides that a “physician or surgeon cannot, without the consent of his patient, be examined in a civil action” regarding the patient’s medical condition except that the physician may provide “testimony” if the patient brings an action which puts his or her condition at issue. Defense counsel can subpoena any of plaintiff’s physicians to testify in a pretrial deposition or at trial. In my view, ex parte contact of a patient’s treating physician by defense counsel is in clear violation of I.C. § 9-203(4)(C). To the extent that the dissent of Bistline, J., is critical of ex parte contact of treating physicians by defense counsel, other than that expressly allowed by the statute, I agree.