Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 93 C 6--Sarah Evans Barker, Chief Judge.
Before CUMMINGS, KANNE and ROVNER, Circuit Judges.
SUBMITTED DECEMBER 20, 1995 *fn*
In this diversity action governed by Indiana law, William M. Giffin sued his treating physician Dr. Jack Summerlin for giving unfavorable deposition testimony in a malpractice lawsuit that Giffin brought against a previous treating physician. Giffin asserted that Dr. Summerlin owed him a duty to refrain from assisting his adversary in the malpractice litigation, and that Dr. Summerlin's breach of that duty gave rise to a cause of action for a violation of the confidential relationship between physician and patient. The district court granted summary judgment in favor of Dr. Summerlin. We hold that Dr. Summerlin is shielded from civil liability for his testimony under the doctrine of witness immunity, and we affirm.
This case arose out of a medical malpractice action filed by Giffin following plastic surgery he underwent in 1981 at Presbyterian University Hospital in Pittsburgh, Pennsylvania to correct a snarl on the left side of his face. The surgery, which was performed by Dr. J.W. Futrell, left Giffin facially disfigured by completely paralyzing the left center portion of his face. Giffin then saw Dr. Summerlin, a reconstructive surgeon in Indianapolis, Indiana, who performed five operations between 1982 and 1984 that improved Giffin's appearance and facial condition.
In November 1983, Giffin's attorney wrote Dr. Summerlin, asking him to respond to a set of five questions concerning the merit of a malpractice action against Dr. Futrell that Giffin was contemplating. Dr. Summerlin completed the questionnaire and promptly returned it to Giffin's attorney. Dr. Summerlin's responses reflected his belief that Dr. Futrell complied with the standard of care in treating Giffin. *fn1
In spite of Dr. Summerlin's views, Giffin brought a malpractice lawsuit in Pennsylvania state court in December 1983 against Dr. Futrell and Presbyterian University Hospital ("Pennsylvania litigation"). The case lingered in the state court for several years. In August 1990, counsel for Dr. Futrell sent Dr. Summerlin a request for any medical records relating to Giffin, and enclosed a medical release authorization signed by Giffin. *fn2 Pursuant to that authorization, Dr. Summerlin furnished Dr. Futrell's attorney with the November 1983 letter from Giffin's counsel and his responses to the questionnaire.
On June 5, 1991, shortly before the Pennsylvania litigation was scheduled to go to trial, Dr. Summerlin was deposed in Indianapolis by counsel for both Giffin and Dr. Futrell. According to Giffin, Dr. Summerlin agreed before the depositions to testify only about the surgeries he had performed on Giffin and not about any possible negligence or malpractice on the part of Dr. Futrell.
Dr. Summerlin did not limit the scope of his deposition testimony, however. At the first deposition, which was taken by Giffin's attorney, Dr. Summerlin testified on cross-examination that the procedure used by Dr. Futrell to treat Giffin's disfiguring snarl was an accepted method and had been performed within the standard of care. (R. 17, Ex. E at 31, 49.) At the second deposition, conducted by Dr. Futrell's counsel in the presence of Giffin and Giffin's attorney, Dr. Summerlin testified that he believed Dr. Futrell's operation was "an appropriate approach for the problem that existed" and that Dr. Futrell "performed with the skills that you would usually allow for that type [of] surgery." (R. 17, Ex. F at 18, 21.) At no time did Giffin's counsel object to any of Dr. Summerlin's testimony on the basis of the patient-physician privilege.
The parties proceeded with jury selection on January 7, 1991, and then initiated settlement negotiations. In April 1991, Giffin agreed to accept $21,000 as a settlement in exchange for his release of all claims arising out of the Pennsylvania litigation.
Giffin, proceeding pro se, filed this present action in January 1993. Giffin alleged that Dr. Summerlin breached the physician-patient privilege and the confidential relationship between physician and patient by speaking with Dr. Futrell's counsel outside the presence of Giffin's counsel and by testifying at his depositions that it was his opinion that Dr. Futrell was not negligent. Specifically, Giffin alleged that Dr. Summerlin provided "extra judicial interviews" to Dr. Futrell's attorney; gave false testimony in support of Dr. Futrell; testified as an expert witness for Dr. Futrell contrary to Giffin's interests; breached his fiduciary duty to Giffin; provided Dr. Futrell's attorney with work product of Giffin's own counsel; misled Giffin and Giffin's attorney about the nature of his testimony; and showed loyalty to Dr. Futrell rather than Giffin. As a direct and proximate result of these acts, Giffin alleged, the Pennsylvania litigation was "rendered winless" and he was "compelled" to settle for $21,000. Giffin's complaint also included one count for breach of implied contract and one count for breach of express contract. Giffin based his claims exclusively upon Dr. Summerlin's reports and deposition testimony provided in connection with the Pennsylvania litigation.
Dr. Summerlin moved for summary judgment, which the district court granted in February 1994. *fn3 The court held that Giffin had waived the physician-patient privilege when he filed his Pennsylvania action. The court also found that the alleged contract was unenforceable, if one even ...