Physician-Patient Confidentiality in Utah

Medical malpractice and personal injury cases often pit an injured patient’s need for evidence against a doctor’s duty to keep patient information private. In Utah, three key cases have shaped how courts balance those interests. In Sorensen v. Barbuto (2008), the Utah Supreme Court held that a treating physician owes a “healthcare fiduciary duty of confidentiality” to a patient – a duty that survives even when the patient brings a lawsuit . In Wilson v. IHC Hospitals, Inc. (2012), the Utah Supreme Court clarified when defense attorneys may interview a plaintiff’s treating physician, emphasizing that, absent notice to the patient, ex parte contacts are generally impermissible . And in Lee v. Williams PC(2018), the Utah Court of Appeals extended these principles to nurses and other providers, confirming that any off-the-record meeting between defense counsel and a patient’s caregiver about the case violates that duty of confidentiality .

Taken together, these decisions underscore that Utah doctors – whether currently treating a patient or having treated the patient in the past – must protect the confidences of that patient in litigation. They also make clear that the proper way for an adversary to learn about a plaintiff’s treatment is through formal discovery (depositions, written questions, subpoenas), not private conversations. The rulings have major practical importance. Injured plaintiffs and their lawyers gain assurance that doctors cannot be secretly co-opted by insurers, doctors learn they must honor confidentiality even under subpoena, and all attorneys must adjust litigation strategy.

Sorensen v. Barbuto

– Case Summary and Rule

Facts: In Sorensen, Nicholas Sorensen was a passenger injured in a 1999 car accident. He was treated for seizures and head injuries by Dr. John Barbuto, a neurologist.  A year and a half later Sorensen changed doctors (his insurer cut Barbuto from its panel) and continued care elsewhere. Sorensen sued the driver’s insurer for his injuries, and the insurer subpoenaed Dr. Barbuto to testify. The trial was delayed, and in the interim Barbuto met privately (ex parte) with the insurer’s lawyers and agreed to testify against Sorensen. Neither Sorensen nor his counsel knew about these meetings until shortly before trial.  Ultimately the trial court excluded Barbuto’s testimony on procedural grounds, and Sorensen prevailed at trial.  Sorensen then sued Dr. Barbuto, alleging that Barbuto (his former doctor) had breached a duty of confidentiality and committed other wrongs by secretly talking to the defense and preparing to testify against him .

Utah Supreme Court Decision: The Utah Supreme Court affirmed the appellate court’s ruling for Sorensen.  The Court held that Utah recognizes a common-law duty of confidentiality – beyond the evidentiary privilege – running from physician to patient.  Ex parte interviews with the defense violated that duty and gave rise to liability.  As the Court summarized, “[w]e affirm the court of appeals holding that Dr. Barbuto’s ex parte communications with opposing counsel … was a violation of [his] healthcare fiduciary duty of confidentiality” .  In its conclusion, the Court stated flatly that “[e]x 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, it stressed that even when a patient sues (thus waiving certain privileges), “a physician must adhere to the healthcare fiduciary duty of confidentiality” .

In other words, Sorensen makes clear: simply because a patient sues does not grant carte blanche to treat all medical information as fair game.  The court explained that a patient’s lawsuit puts at issue only certain medical facts (those relevant to the injury), but it does not nullify the doctor’s larger duty to protect all confidences.  The only proper way for defense counsel to learn about the patient’s treatment is via court-supervised discovery (depositions, interrogatories, medical records subpoenas), not through private phone calls or meetings.

Key Quotes from Sorensen: The Court’s opinion is very direct about the rationale.  Utah agreed with other courts that forbidding private defense interviews protects patients’ expectations of privacy: “not doing so undermines patient expectations of physician-patient confidentiality,” and without judicial oversight an adversary’s demands could “completely disregarded” the confidential relationship .  The Court observed that unmonitored interviews “would  undermine the physician-patient relationship” by removing any assurance that a patient’s honest disclosures will remain private .  In short, “[w]e agree…ex parte communications between a treating physician and counsel opposing the patient should be prohibited” .

Importantly, Sorensen went so far as to overrule a prior bar ethics opinion (Utah Ethics Op. 99-03) that had said defense counsel could contact a doctor unilaterally. The Supreme Court vacated that opinion and “instruct[ed] lawyers to confine their contact and communications with a physician…who treated their adversary to formal discovery methods” .  In doing so, the Court placed any onus on attorneys (not doctors) who might have relied on the old opinion – stating that the rule did not shield the physician from liability, but only that it had governed attorneys.

Implications:  Sorensen effectively establishes that a treating doctor in Utah stands in a fiduciary-like position with respect to a patient’s confidences, even in litigation.  It creates liability (in tort) if a doctor knowingly breaks that confidentiality for the patient’s litigation adversary.  For injured patients, this is good news: it means a physician cannot clandestinely side with the defense.  For physicians, Sorensen serves as a warning not to let zeal (or an insurer’s encouragement) overcome the duty to the patient.  For attorneys, Sorensen is a bright-line rule: if an attorney wants information from the patient’s doctor, it must come in open discovery, not secret interviews.

Wilson v. IHC Hospitals, Inc. – Case Summary and Rule

Facts: Wilson was a medical malpractice case arising in 1995.  Jerome and Leilani Wilson sued IHC Hospitals and its doctors on behalf of their son, Jared, born with severe brain damage.  They claimed the hospital failed to perform a timely C-section, causing injury.  A jury in 2008 found no negligence.  On appeal to the Utah Supreme Court, the Wilsons raised multiple issues, the most significant being that IHC had repeatedly violated the trial court’s order forbidding mention of collateral-source benefits (they were receiving government assistance and insurance coverage for Jared’s care). The Supreme Court agreed that IHC’s tactics (explicit questions and comments about out-of-pocket costs) so tainted the trial that the verdict had to be vacated.

Ex Parte Communications Issue: Although Wilson is best known for its collateral source ruling, it also addressed physician communications as a secondary issue.  In Wilson, defense counsel had met ex parte with Jared’s treating physicians (they were employees of IHC) without giving notice to the family.  The trial judge had allowed it (since the doctors were IHC’s employees), but the Wilsons appealed.

Utah Supreme Court Decision: On remand instructions, the Wilson opinion clarified the rule for ex parte contacts in two circumstances.  The Court held that if a treating physician is not employed by the defendant, then the physician must notify the patient beforehand before meeting privately with defense counsel .  In contrast, if the treating physician is employed by the defendant hospital (and the hospital is vicariously liable), then defense lawyers may meet with the doctor without prior notice to the patient .  In short, the Court drew a practical distinction: for independent doctors, patient notice is required; for hospital-employed doctors, no notice is required.

This rule reflects the Court’s attempt to balance patient confidentiality with practical trial needs.  When the doctor is effectively part of the defendant’s own staff, the Court reasoned, it is not unreasonable for defense counsel to interview that doctor (the patient’s “adversary” in litigation is then the hospital itself).  But when the doctor is an unaffiliated private physician, the patient must be informed of any private interview by the defense.

Key Quote from Wilson: The Court expressly spelled this out: “In cases where a treating physician is not an employee of a defendant, the physician must notify the patient prior to meeting ex parte with opposing counsel.  However, where the treating physician is employed by a defendant and the defendant is alleged to be vicariously liable for the physician’s conduct, it is permissible for defense counsel to meet with [the] defendant’s employee without notifying the plaintiff.” .

Other Points: Wilson also implicitly reaffirmed the general Sorensen principle.  The opinion noted that defense counsel “has a duty in the underlying lawsuit to neither instigate nor facilitate a treating physician’s breach of the duty of confidentiality to his patient through an improper ex parte meeting” .  That quote (from Wilson as cited in Lee) signals that, regardless of notice rules, lawyers must avoid schemes that lead a doctor to break confidence.

Implications: The Wilson rule adds nuance.  If you are the patient (or your lawyer) and you learn the defense plans to interview your doctor, check whether the doctor was an independent physician or a hospital employee.  If independent, your lawyer should insist on being notified or present.  If employed by the defendant, notice isn’t required by Wilson, but the duty to keep confidences still exists.  For defense attorneys, Wilson warns them to be careful: with independent doctors, give notice or face sanctions.  Even with hospital doctors, it would be wise (though not legally required) to act transparently.  In practice, Wilson shows that Utah will require doctors to notify patients (in effect, blocking secret defense interviews) unless the employment context justifies it.

Lee v. Williams PC

– Case Summary and Rule

Facts: In Lee, the plaintiff Amanda Lee sued her obstetrician, Dr. Williams, for malpractice over a missed RhoGAM injection during her 2008 pregnancy (failure to prevent Rh-sensitization in mother).  During trial, Dr. Williams’s counsel privately contacted a nurse who had treated Lee during that pregnancy, on the eve of the nurse’s testimony.  The nurse agreed to testify for the defense about Dr. Williams’s general practice style (e.g. that he thoroughly explains injuries to patients), but she did not discuss Lee’s own case.  Lee discovered this off-the-record conversation and moved to sanction the defense for violating Sorensen.  The trial court declined to impose any remedy.

Utah Court of Appeals Decision: The Utah Court of Appeals agreed with Lee that the unreported nurse interview was improper.  First, the court found as a factual matter that the nurse had been a treating provider for Lee (contrary to the defense’s claim that Lee had never seen the nurse).  Second, applying Sorensen and Wilson, the court held the ex parte call violated the duty of confidentiality just as if the nurse were a physician: any communication “related to the merits or substance of the plaintiff’s case” is forbidden .  In other words, even though the conversation with the nurse did not mention Lee’s name or specific medical details, it was still too close to the line.

Key Quotes from Lee:  The court observed that Sorensen had framed the issue as a universal ban: “ex parte communications between a plaintiff’s treating physician and defense counsel” are prohibited .  It then extended that rule by concluding that any ex parte meeting with a treating provider about the case violates the confidentiality duty.  As the opinion puts it, “we conclude that any ex parte communication between a defense attorney and a plaintiff’s treating physician that is related to the merits or substance of the plaintiff’s case in any respect violates the rule set forth in Sorensen” .  Because the nurse in Lee was indisputably part of Lee’s care team, the unsanctioned phone call broke the rule.  The court therefore reversed on that ground (along with other errors) and remanded for a new trial.

Implications: Lee confirms that Utah courts apply the Sorensen confidentiality rule broadly to all members of the patient’s medical team, not just doctors.  A nurse, therapist or other caregiver who treated the plaintiff is owed the same protection.  Any secret meeting between defense counsel and such a provider – even if it only touches general strategy – is considered a violation.  In practical terms, after Lee it’s clear that if a case goes to trial, both plaintiff and defendant must be vigilant: if the defense calls any treating caregiver on short notice, the plaintiff’s side should object, and the judge should consider sanctions or mistrial.  Doctors and other providers should similarly refuse to divulge any case-related info without formal process.

What These Cases Teach About Doctors’ Duties

Taken together, Sorensen, Wilson, and Lee send a consistent message: Utah doctors owe a strict confidentiality duty to their current and former patients, even in litigation. This duty is fiduciary-like – meaning it’s grounded in trust and loyalty, not just a narrow evidentiary privilege – and it forbids secret sharing of patient information.  Important points include:

• Duty survives waiver of privilege.  In all these cases, the patient had placed his or her condition at issue (by suing) and thus could not invoke the privilege to hide relevant records.  But the courts made clear that the mere act of suing does not let the doctor disregard all privacy.  As Sorensen stated, even when a patient “waived his rule 506 privilege by placing [his] condition at issue… the physician must adhere to the [fiduciary] duty of confidentiality” .  In practice, this means doctors can testify to relevant facts (as subpoenaed), but only within the bounds of what discovery allows.  Anything beyond that must be treated as confidential.

• Formal discovery is the only proper channel.  All three cases insist that defense lawyers obtain patient-treatment information through normal court processes (depositions, interrogatories, record subpoenas), not through informal talks.  Sorensen held that relevant medical details “may be obtained only through traditional methods of discovery” .  Lee extended that logic to forbid any out-of-court meeting that touches the case’s merits .  A corollary is that before any doctor or nurse testifies, opposing counsel should get answers under oath and in the presence of all parties – so that the patient’s interests can be protected by counsel and the judge.

• Ex parte interviews are disfavored.  The courts repeatedly emphasized that private defense interviews are destructive to trust.  Utah noted that ex parte contact “completely disregarded” the patient’s confidentiality and “destroyed” the sanctity of the doctor-patient relationship .  The rule is categorical: if you’re a caregiver who treated the patient, you should not have a private conversation with opposing counsel about the case.  This applies from intake notes to follow-up care – everything must stay confidential unless properly disclosed in open court.

• Notice (and consent) are required in many cases.  Wilson carved out the requirement that patients be notified when their independent doctor is contacted by the defense .  That puts power in the patient’s hands: if you are suing and your doctor is not a hospital employee, you have the right to at least know when defense lawyers want to interview that doctor.  (If the defendant does not give notice, the interview violates Wilson’s rule.)  This has the effect of extending the doctor’s duty: after all, a doctor might refuse to answer or insist that only formal procedures are used once the patient is aware.

• Responsibility extends to all providers.  Although Sorensen spoke of “physicians,” Lee makes clear the logic applies to nurses and, by extension, other health professionals (therapists, technicians, etc.) who form the treating team.  Courts in other states have similarly said a nurse owes a confidentiality duty too .  Thus, Utah practitioners should treat any caregiver on the case as bound by the same rules.  For example, a chiropractor or a therapist’s notes should be handled just as carefully as a doctor’s.

• Ethical overlay for attorneys and doctors alike.  The Sorensen Court reminded that the authority on professional ethics is ultimately the Utah Supreme Court, not a bar advisory committee .  It essentially made professional norms out of these rules: defense lawyers are “instruct[ed]” to avoid ex parte contacts , and physicians who knew about Debry (a Utah statute requiring patient notice before releasing medical info for litigation) already had that obligation (footnote in Sorensen).  So after these cases, it is no longer an open question of ethics or civility – it’s a settled legal requirement in Utah.

Practical Takeaways

These cases have concrete implications for injured plaintiffs, treating doctors, and lawyers:

• For injured plaintiffs and patients: Know your rights.  If you sue, inform your doctors that you expect confidentiality unless properly waived. If you find out a defense lawyer has interviewed your former doctor or nurse without your involvement or notice, speak up immediately.  You have a legal basis (under Sorensen/ Lee) to object or move for sanctions.  Remind your lawyer to check Wilson’s notice rule when a defendant is contacting doctors.  In trial, insist that any medical witness testify in open court with your lawyer present.

• For treating doctors (and nurses): Err on the side of privacy. If a defense lawyer calls you, consider it an improper request unless it comes through formal channels.  Ask, “Has the patient consented or been notified of this interview?”  You may politely refuse to meet privately and direct them to take a deposition or seek a court order. Remember that Utah recognizes you as having a fiduciary obligation to your patient. Violating that (even unknowingly) could expose you to a lawsuit (as Dr. Barbuto found out).  If you are a hospital-employed doctor, Wilson allows an interview without notice—but even then you should be mindful of confidentiality, and consider suggesting that your employer or the patient’s attorney also participate.

• For attorneys (plaintiffs’ bar): Use these cases defensively and offensively.  Make sure client intake includes telling the patient to notify you of any defense contact with their providers.  If defense counsel tries to subpoena or interview a treating doctor or nurse off-record, object on Sorensen grounds. Cite Sorensen and Lee: Utah law says only formal discovery is allowed.  If the defendant argues Wilson, check who employs the doctor.  If independent, move for warning or exclude testimony taken without notice.  If the court disallows defense’s ex parte contact, you have the high ground.  And if the court permits it, Wilson says it should at least be noticed. Use Lee to extend protection to non-physician providers.

• For attorneys (defense bar): Be very cautious. Before approaching any of the plaintiff’s care providers, ask: Is this doctor/hospital my client’s employee or independent?  If independent, Wilson demands you notify the patient and opposing counsel.  Many defense lawyers will simply insist on taking the deposition instead (the safer route) to avoid any allegation of secret contact.  If the provider is your employee, proceed with care – Sorensen still applies, so don’t pry into the plaintiff’s confidential disclosures.  It’s also wise to document that you are following Wilson’s notice requirement. Remember, Sorensen warns that courts can sanction lawyers who “instigate or facilitate” a confidentiality breach .  The price of a misstep can be exclusion of evidence or even a mistrial (as in Wilson).

• For all health care providers and lawyers: The fundamental lesson is to respect the patient’s trust. Utah law says the patient has a right to candid care without fear that one day the doctor might leak sensitive details to the other side.  The costs of secret interviews are real: they undermine confidence and could taint verdicts.  By contrast, following these rules keeps the process fair and predictable.

Conclusion

In short, Utah’s Sorensen, Wilson, and Lee decisions make a powerful statement: when it comes to litigation, a patient’s confidences remain largely sacred.  Doctors must safeguard information about their patients, and opposing lawyers must use formal, court-supervised means to obtain evidence.  These cases reinforce the ethic that doctors serve the patient first, even long after the patient leaves the office or hospital.  For injured plaintiffs, this is a protection; for doctors, it is an obligation; and for attorneys, it is a rule of the road.

Key citations: Utah’s highest court in Sorensen v. Barbuto and Wilson v. IHC Hospitals (2012) and the Utah Court of Appeals in Lee v. Williams explicitly hold that unauthorized ex parte contacts with a patient’s physician or nurse violate the patient’s legal confidentiality rights . These cases together create a clear framework for how such situations must be handled.