State v. Wilson5/31/2001
AFFIRMED
After having this case against defendant/appellee Thomas Wilson dismissed without prejudice, the state appeals from the trial court's prior r uling, based on the physician-patient privilege (the privilege), that excluded evidence the state deems critical. We affirm.
BACKGROUND
The state charged Wilson with fraudulent scheme and artifice and theft by misrepresentation for allegedly having filed and pursued a fraudulent claim for workers' compensation benefits against the City of Tucson during his employment with the Tucson Police Department. The indictment was based largely on alleged discrepancies between Wilson's complaints to physicians of certain physical limitations and various activities in which Wilson engaged, as depicted in surveillance videotapes obtained by the City. The state filed a motion for a ruling relating to Wilson's asser tion of the privilege, contending the privilege did not preclude testimony from five physicians who had "treated [Wilson] as part of his Workers' Compensation claim." The trial court largely denied the motion, precluding the state from calling all but one physician, Dr. Krasner, whom, the state claimed, had seen Wilson for an independent medical examination (IME) rather than as a tr eating physician.
Wilson subsequently moved for reconsideration of the ruling relating to Krasner and for an in limine ruling that, even if he theoretically could have waived the privilege as to that physician, the facts did not support a finding of waiver here. After a hearing at which counsel argued, introduced several exhibits, and made certain avowals, the trial court ruled in Wilson's favor, stating it could not find "a waiver of the doctor-patient privilege from the evidence presented. " This appeal followed the trial court's denial of the state's motion for reconsideration and dismissal of the case without prejudice on the state's motion.
DISCUSSION
THE STATE ONLY CHALLENGES THE TRIAL COURT'S PRECLUSION OF KRASNER'S TESTIMONY, arguing that the privilege does not apply to him or, alternatively, that Wilson impliedly waived the privilege. The question of whether a privilege exists is generally a legal question that is subject to our de novo review. See, e.g. , State v. Santeyan, 136 Ar iz. 108, 664 P.2d 652 (1983); Blazek v. Superior Court, 177 Ar iz. 535, 537, 869 P. 2d 509, 511 (App. 1994); cf. State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ar iz. 52, , 13 P. 3d 1169, 12 (2000) (although trial court has broad discretion in ruling on a party's assertion of privilege, that discretion does not permit misapplication of law or a ruling pr edicated on irrational bases). We also review de novo the question of whether a party has waived a privilege, Home Indemnity Co. v. Lane Powell Moss and Miller, 43 F. 3d 1322, 1326 (9th Cir. 1995), unless that question hinges on r esolution of conflicting facts or witness credibility issues. Cf. State v. Steelman, 120 Ar iz. 301, 317, 585 P. 2d 1213, 1229 (1978). Finally, to the extent the state's argument requires interpretation of statutes, we review such issues de novo. State v. Leon, 197 Ar iz. 48, , 3 P. 3d 968, 2 (App. 1999).
Section 13-4062(4), A. R.S. , pr ovides that a physician or surgeon shall not be examined as a witness "without consent of the physician's or surgeon's patient, as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient. " "Because there was no such privilege at common law, the statute must be strictly construed. " State v. Morales, 170 Ar iz. 360, 363, 824 P. 2d 756, 759 (App. 1991). The privilege is primarily intended to protect
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