Beerens v Biggs  NSWSC 1707 (available on Caselaw) saw the defendant claim a declaration that he is not prevented from interviewing, through his legal representatives, three former treating doctors of the plaintiff.
The defendant was a neurosurgeon consulted by the plaintiff following a motorcycle accident injury. The plaintiff has brought this action for damages in negligence, alleging that as a result of the operation performed by the defendant he has developed diaphragmatic palsy.
The defendant wished to have his legal representatives interview Dr Lawson, who assisted in the operation, and also Prof Michael Tonkin and Dr Ralph Mobbs. The plaintiff had consulted Drs Tonkin and Mobbs with respect to the proposed procedure during the two months before it was undertaken.
Justice Fagan approached the dispute in this way (at  – )
It may be accepted that the plaintiff’s communications to and from each of Drs Lawson, Tonkin and Mobbs were confidential as against third parties in general. It is common ground between the plaintiff and the defendant that an obligation of confidence is implied in the doctor-patient relationship. In 2014 this obligation was recognised in codes of practice of medical practitioners that were then in circulation, such as those published by the Medical Board of Australia and the Royal Australian College of Surgeons. Each of the three doctors was a fellow of the College. However, the defendant submits that this obligation of confidence did not operate as against the defendant. He says that, on the contrary, he was “within the circle of confidence”.
The defendant’s submission is correct. He and the three doctors with whom this application is concerned were all engaged by the plaintiff at about the same time, in relation to the same medical issue, pursuant to the recommendations of one another and leading ultimately to the plaintiff’s engagement of the defendant and Drs Lawson and Stewart to perform the operation jointly. The plaintiff received copies of the reports of Drs Lawson and Tonkin which clearly showed on their face that these had also been sent to the defendant. The plaintiff received a copy of Dr Mobbs’ report that was addressed to his GP, Dr Samaranayake, who would have been under a professional duty to pass on this report to the defendant as one of the additional opinions that the plaintiff had procured.
Far from there being an obligation owed by Drs Lawson, Tonkin and Mobbs to maintain confidence as against the defendant, each of those doctors and the GP owed the plaintiff a duty of care to disseminate to the defendant, as the intended lead surgeon, and to each other all communications on the relevant matter that had taken place between themselves and the plaintiff.
The plaintiff submits that while no obligation of confidence may have operated as against the defendant prior to completion of the surgery, so that free communication between all of the doctors could take place at that time, after the procedure had been carried out and in particular since the commencement of this litigation an obligation of confidence as against the defendant has come into force, including with respect to communications that took place up to and including 4 June 2014. I reject that submission. All of these doctors were, at the relevant time, obliged to share with each other and with the defendant communications and information relevant to the plaintiff’s healthcare. No authority was cited by the plaintiff in support of the proposition that, retrospectively, the three doctors have come under an obligation of confidence with respect to communications dating from a time when no such obligation applied. Although the circumstances are not precisely the same as those in Coffey v Murrumbidgee Local Health District  NSWSC 1538, Garling J’s decision in that case is inconsistent with the argument presently advanced by the plaintiff.
The court went on to say at  – :
The defendant’s application for a declaration that his legal representatives may interview the three doctors is directed to the limited purpose of discussing with them their pre-operative consultations with the plaintiff and other doctors and their involvement in the surgery on 4 June 2014. Although the outcome of the application does not depend upon this, it may be observed that interviewing the three doctors is an obviously prudent course having regard to the particulars of negligence alleged against the defendant. One or more of those other doctors may be able to shed light upon pre-operative enquiries undertaken and/or warnings of risk issued. It would be usual for the Court in due course to order that evidentiary statements be exchanged before the trial of the action commences. Interviewing these potential witnesses is therefore an obviously sensible aspect of forensic investigation and preparation for the defendant.
The plaintiff’s counsel could advance no ground of merit or utility to justify his insistence upon enforcing the alleged obligation of confidence. Before I had absorbed the detail of the letters of referral and the reports of the various specialists, upon the assumption that there existed an obligation of the three doctors to maintain confidence as against the defendant I pointed out to counsel that it was in the plaintiff’s hands to waive any confidence and asked “Why would he not?”. The only answer proffered by the plaintiff’s counsel was, “He does not wish to”. I regard that as unreasonable. I cannot see that anything was to be gained by the plaintiff obstructing the defendant from interviewing these potential witnesses. Whatever the reach of their obligation of confidence it could not prevail over their duty to answer questions if the defendant should subpoena them to give evidence at the trial: Richards v Kadian (2005) 64 NSWLR 204;  NSWCA 328 at . The maximum potential of the plaintiff’s stance was that he might thereby disrupt and inconvenience the defendant and the Court if, when called, any of the three doctors should give evidence for which the defendant might be insufficiently prepared.
And at :
…The declaration obtained by the defendant will have utility in enabling him to determine in advance of the trial whether any of these three potential witnesses should be called. Such pre-trial investigation of potential evidence is the norm of current civil procedure. Not only will it be useful to save Court time and legal expenses. Interviewing the three doctors in advance of the hearing is the most efficient way of ensuring that their valuable time will not be wasted in being subpoenaed to no purpose.