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State v. Wilson5/31/2001
), the state lastly contends the privilege is unavailable to Wilson because Krasner saw him for an IME, not as a treating physician. We concluded in Hafner that, because no doctor/patient relationship existed between an IME physician and the workers' compensation claimant whom he had examined, the physician owed no duty to the claimant, but only to the workers' compensation carrier that had requested the physician's services. Thus, the claimant had no actionable medical malpractice claim against the IME physician. The state contends, and the trial court essentially agreed, that the privilege does not apply to an examinee's communications with an IME physician. See Turrentine, 152 Ar iz. at 66, 730 P.2d at 243 (ยง 13-4062(4) does not apply to defendant's statements made to nontreating physician); cf. Steelman, 120 Ar iz. at 317, 585 P. 2d at 1229 (no privilege when defendant is examined on orders of court or prosecutor with respect to issues for trial). Even if Beck tangentially supports that proposition, however, we find no error in the trial court's exclusion of Krasner's testimony.
In the absence of clear, objective evidence to the contrary, the patient's reasonable, subjective belief as to the purpose of the examination controls whether a privilege does or does not apply. See Steelman, 120 Ar iz. at 317, 585 P. 2d at 1229 (" f the patient believes the examination is for purposes of tr eatment, the privileges will apply even if there are also other purposes for the examination."); cf. Fodor, 179 Ar iz. at 448, 880 P.2d at 668 (" The test for determining whether a communication is protected by the attorney-client privilege is a subjective one; it focuses primarily on the state of mind of the client." ). T he state had the burden of proving that, before or during Krasner's examination, Wilson knew that Krasner was an IME physician. See Carmona v. State, 941 S. W.2d 949, 953 (Tex. Ct. Crim. App. 1997); cf. Steelman. T he trial court implicitly ruled that the state had failed to meet that burden and, ther efore, found no waiver of the privilege from the evidence presented.
The record r easonably supports that ruling. F or example, Krasner's repor t was neither entitled nor refer red to any " independent medical examination." Although Krasner stated during a pretrial interview that he normally asked patients to sign an authorization for an IME, he could not recall whether Wilson had signed such a form or whether he had discussed the form with Wilson. Krasner's file relating to Wilson contained no such form. Moreover, the letter that the City's workers' compensation administrator sent to Wilson to schedule his visit with Krasner referr ed to the appointment as a "consultation" and was identical to two other letters the administrator previously had sent to Wilson to notify him of other appointments with treating, non-IME physicians. And finally, a notation in the administrator's claim file that, when Krasner "sees [Wilson] he can give new [treatment] plan," suggests that the Krasner appointment was not for an IME.
The prosecutor avowed to the trial court that Krasner, based on the standard procedure he had followed at "each and every treatment session," would "swear under oath that he did advise [Wilson] this was an independent medical examination and that [Wilson] had the ability to refuse. " But, in view of Krasner's prior interviews, the available documentation relating to his examination, and defense counsel's avowal that Wilson "was never advised this was an independent medical examination and that indeed the first time he heard the words IME after Dr. Krasner had examined him, several days later, " the r ecord supports the tr ial court's conclusion that Krasner was " equivocal
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