State v. Wilson5/31/2001
ition and then invoking the privilege not only to "buttr ess such a position" but also to pr event the opposing party from impeaching or otherwise challenging it. Throop, 94 Ar iz. at 157-58, 382 P. 2d at 567-68, quoting Wigmore, supra, § 2388, at 855. See also State Farm, 199 Ariz. 52, , 18, 13 P.3d 1169, 9, 18; Ulibarri, 184 Ariz. at 385, 909 P. 2d at 452; Buffa v. Scott, 147 Ar iz. 140, 708 P. 2d 1331 (App. 1985). That is to say, "waiver can be implied when a party injects a matter that, in t he context of the case, cr eates such a need for the opponent to obtain the information allegedly protected by the privilege that it would be unfair to allow that party to assert the privilege. " State Farm, 199 Ariz. 52, 23, 13 P.3d 1169, .
This case, however, does not pr esent such a scenario in which implied waiver must be found. Unlike the defendant in State v. Tallabas, 155 Ariz. 321, 323-24, 746 P. 2d 491, 493- 94 (App. 1987), on which the state also relies, the state, not Wilson, sought to call Krasner as a witness and placed Wilson's medical condition at issue in this case. Cf. State v. Turrentine, 152 Ariz. 61, 66, 730 P.2d 238, 243 (App. 1986) (by raising issue of sanity and calling physicians to testify, defendant "necessarily opened the door to statements he had made to the physicians"). And, unlike the privilege holder in Ulibarri, Wilson did not threaten a third party with his physician-patient communications and then invoke the privilege. 184 Ariz. at 384-85, 909 P.2d at 451-52. F inally, in the workers' compensation case, let alone in this criminal action, Wilson did not testify about or otherwise publicly disclose the substance of his conversation with Krasner or, for that matter, with any other physician.
That Wilson pursued a workers' compensation claim and "did not pay for medical exams himself," as the state argues, does not, in and of itself, mean he waived his privilege. Cf. State ex rel. Maloney v. Allen, 26 S. W.3d 244, 247 (Mo. Ct. App. 2000) (filing of workers' compensation claim does not result in unlimited modification or waiver of privilege). Similarly, that Wilson may have impliedly waived the privilege in his workers' compensation case as to any particular medical conditions claimed ther ein does not compel the conclusion that he likewise "pur sue a course of conduct inconsistent with observance of the privilege" in this criminal case. Bain, 148 Ar iz. at 334, 714 P. 2d at 827. Contrary to the state's contention, Wilson's filing of a workers' compensation claim does not necessarily negate an intent to keep his conversation with Krasner private or confidential outside the context of the workers' compensation case.
The state also contends A. R.S. § 23-908(C) " expressly negates any claim of doctor/ patient privilege when an individual files a Worker's Compensation claim. " That statute provides in pertinent part:
Notwithstanding [A.R. S.] § 12-2235, infor mation obtained by any physician or surgeon examining or treating an injured person shall not be considered a privileged communication, if such information is requested by interested parties for a proper understanding of the case and a determination of the rights involved. . . . Medical information from any source pertaining to conditions unrelated to the pending industrial claim shall remain privileged.
As the state correctly points out, although the introductory language of § 23-908(C) only refers to § 12-2235, the physician-patient privilege that applies to civil actions, that does not necessarily mean § 23-908(C) is irrelevant and inapplicable to criminal cases. Because the language of § 12- 2235 "is not significantly different from" § 13-4062(4), " there is no s
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