DBTC Law Firm

The Poisoned Well: How a Court Can Fire Your Attorney Against Your Wishes

Arkansas’s rules of evidence and civil procedure attempt to balance the doctor-patient privilege with the attorney-client privilege. However, an Arkansas Supreme Court decision has found that a non-party doctor’s disclosure of patient information to his attorney may result in that attorney being prevented from representing the doctor’s medical partner and medical practice once a lawsuit has been filed.

In the 2012 case of Bulsara v. Watkins, 2012 Ark. 108, a malpractice suit was threatened against two doctors and their medical clinic. The two doctors consulted with their lawyer about the claims and subsequently the malpractice suit was filed, but only against one doctor and the medical clinic, leaving the other doctor out of the litigation. The lawyer who had consulted with all three defended the case in court where the defendant doctor and his medical practice won by jury verdict. The disappointed plaintiff moved for a new trial and to disqualify the defense lawyer. The trial court denied that motion, and plaintiff appealed to the Arkansas Supreme Court, arguing that he was prejudiced by the defense attorney having “inappropriate” communications with the non-party doctor in violation of the plaintiff’s doctor-patient privilege.

On appeal, a divided Arkansas Supreme Court reversed the trial court’s ruling, finding the plaintiff was prejudiced by the non-party doctor’s communication of private medical information to that doctor’s own attorney, because that attorney ended up defending the non-party doctor’s medical partner against the plaintiff’s medical malpractice action. The defendant argued that because the defense attorney was representing the two doctors and their clinic prior to the medical malpractice action being filed, they were collectively exercising their right to counsel regarding potential litigation. However, the majority of the Arkansas Supreme Court dismissed the defendant’s arguments. The Court determined that the non-party doctor’s right to counsel did not remove her obligation to protect confidential information obtained under the doctor-patient privilege, unless the doctor herself was sued or the patient consented to her communicating with defense counsel. In this case, the plaintiff clearly did not consent to such communications and only the doctor’s medical partner and the medical clinic were sued by the plaintiff, not the doctor herself. As a result, the Arkansas Supreme Court concluded that the plaintiff was entitled to a new trial.

In spite of rebuke of several dissenting Justices and the objection of defendant doctor, the Arkansas Supreme Court went well beyond holding that the plaintiff was entitled to a new trial; it effectively fired the defendant’s trial attorney from further representation. The majority held that the defense attorney who had prepared and tried the initial lawsuit should be prohibited from representing the defendant doctor in the subsequent re-trial. In essence, the Court held that the attorney’s communications with the non-party doctor before the litigation started, and the resulting access to confidential information had “poisoned the well” and would continue to prejudice the plaintiff if the attorney was allowed to participate in the re-trial of the case. The majority’s ruling compelled the trial court to prevent the attorney from representing the defendant doctor in the re-trial of the medical malpractice case.

With this ruling, it appears that Arkansas trial courts have the power to terminate an attorney’s representation of a defendant doctor without the client’s consent.

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