Ark. SC grants new trial in stillborn case

By Jessica M. Karmasek | Mar 13, 2012


LITTLE ROCK, Ark. (Legal Newsline) - The Arkansas Supreme Court last week remanded a wrongful death action, filed against a doctor by a man whose baby was stillborn, for a new trial.

The Court, in its ruling filed Thursday, reversed the Pulaski County Circuit Court's denial of plaintiff Ketan Bulsara's motion for a new trial.

Bulsara, a neurosurgeon himself, filed the medical malpractice and wrongful death lawsuit in April 2004 against Dr. Julia Watkins and St. Vincent Doctor's Hospital in Little Rock over the stillbirth of his child, Simi.

Bulsara originally appealed to the state Court of Appeals, and that court affirmed the judgment.

He then petitioned the state's high court for review, which it granted. However, it dismissed the appeal without prejudice for lack of a final order.

Bulsara currently appeals from the final order entered by the circuit court, arguing that the circuit court erred in denying his motion for new trial:

- Where defense counsel engaged in ex parte contact with a nonparty, treating physician;

- Where a defense expert refused to disclose the information reviewed in his investigation; and

- Where defense counsel improperly acquired confidential information from an expert who previously consulted with Bulsara and his former counsel.

Justice Paul E. Danielson wrote the Court's 11-page majority decision.

"We in no way dispute Dr. Watkins' claim that a physician can seek legal counsel on issues of concern, just as that holds true for any other person. And, Dr. (Rosey) Seguin (Bulsara's wife's treating physician and Watkins' partner) was free to seek counsel from (Phil) Malcom," Danielson wrote.

"We wish to make clear, however, that she was still bound by her physician-patient privilege with Mrs. Bulsara. It is once the instant lawsuit was filed and failed to name Dr. Seguin, that a conflict in representation arose for Malcom, who also represented Dr. Watkins, a named defendant, or party, that ran afoul of our rules set forth above."

The Court agreed that Bulsara's wife's right to protect her confidential communications with Seguin was "fatally compromised" when Malcom continued his representation of Watkins after the filing of the complaint.

Malcom's "taking" of the information violated state law and served as the basis on which he should have removed himself from the representation, the Court said.

"While Malcom attempts to justify his communications with Dr. Seguin by virtue of the fact that he also represented Dr. Seguin's practice, Arkansas Women's Center, P.A., also a defendant, we are not so swayed," Danielson wrote.

"The policy behind the physician-patient privilege is to encourage patients to communicate openly with their physicians and to prevent physicians from revealing the infirmities of their patients."

The justice added, "Here, Dr. Seguin was Mrs. Bulsara's treating physician, and Rule 503(d)(3)(B) explicitly forbade any communication with her, other than the furnishing of medical records and communications in the context of formal discovery, unless Mrs. Bulsara consented."

The Court said it is "clear" that Bulsara demonstrated a "reasonable possibility of prejudice."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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