(dissenting) — The determinative issue here is not waiver of the physician-patient privilege as discussed by the majority at length. The key issue concerns the fiduciary relationship between doctors and their patients which underlies both the legislative and judicial protection afforded to this relationship. This fiduciary relationship is broader than the statutorily defined code of confidentiality and includes a duty to act consistent with the best interests of the patient. The extent to which we will permit the legal search for truth to harm this fiduciary relationship is the key question in this case. Where, as is the case here, alternative testimony is available to the defense, the fiduciary nature of this relationship should bar physicians from giving opinion testimony on standards of care in their patients’cases.
The grave risk of prejudice inherent in this kind of testimony provides further reason why this type of opinion testimony should not be permitted. I disagree with the majority’s conclusion that this kind of testimony does not unfairly prejudice the plaintiff. The majority fails to recognize the overwhelming effect on a jury when a patient/ .litigant’s own doctor casts his or her allegiance with the defense and states, in effect, my patient has no case. Jurors are inclined to give great weight to a treating physician’s testimony because they recognize the special nature of a physician-patient relationship. Yet expert testimony regarding another physician’s standard of care is not based on information gained through this relationship and consequently should not be accorded extra weight. Because the majority’s holding fails to recognize and protect the sanctity *229of the physician-patient relationship and because it sanctions unfairly prejudicial testimony, I dissent.
I
Washington’s statutory physician-patient privilege provides in relevant part:
[A] physician or surgeon or osteopathic physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient....
RCW 5.60.060(4). As the majority correctly notes, "[a]s a statute in derogation of common law, RCW 5.60.060(4) is to be construed strictly, and limited to its purposes”. Majority, at 213 (citing Department of Social & Health Servs. v. Latta, 92 Wn.2d 812, 819-20, 601 P.2d 520 (1979)). By its very words, the statute is limited in scope to information acquired by a physician, "which was necessary to enable him or her to prescribe or act for the patient”. RCW 5.60-.060(4). Yet the majority, ignoring its own analysis, stretches the scope of the statutory privilege to include both factual testimony and opinion testimony, and concludes both were waived in this case. The majority explains:
We also observe that neither.the waiver in RCW 5.60.060(4) nor the order voluntarily entered into by plaintiff in this case distinguishes between fact and opinion evidence. Both fully waive the physician-patient privilege without regard to the type of testimony offered by a treating physician.
Majority, at 215. This analysis is off the mark. The statutory waiver provision provides:
Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules.
RCW 5.60.060(4)(b). Like the statutory privilege itself, the statutory waiver does not include expert testimony. Notwithstanding the majority’s observations, the plaintiff did *230not expressly distinguish between fact and expert testimony because expert testimony does not fall within the scope of the statute. Similarly, the order signed by the plaintiff, permitting interviews with her treating physicians, waives the physician-patient privilege. Since there exists no common law right to claim a physician-patient privilege, Latta, 92 Wn.2d at 819, the order could only have waived the statutory privilege. And the statutory privilege simply does not apply to the testimony at issue in this case.
But while the statutory privilege does not apply, a physician’s fiduciary duty to his or her patient can prevent a doctor from acting adversely to the patient’s interests. In Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988), we recognized a broad public policy interest in protecting the physician-patient relationship that extends beyond the statutory protection afforded by RCW 5.60.060(4). Faced with the question whether defense counsel may engage in ex parte contacts with a plaintiff’s physicians, we explored the nature of the physician-patient relationship after a patient has waived the statutory privilege against confidential communication. Holding that defense counsel is prohibited from engaging in ex parte contacts with a plaintiff’s physicians, we explained:
The mere threat that a physician might engage in private interviews with defense counsel would, for some, have a chilling effect on the physician-patient relationship and hinder further treatment. The relationship between physician and patient is "a fiduciary one of the highest degree . . . involving] every element of trust, confidence and good faith.”
Loudon, 110 Wn.2d at 679 (quoting Lockett v. Goodill, 71 Wn.2d 654, 656, 430 P.2d 589 (1967)). We further found "it difficult to believe that a physician can engage in an ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient.” Loudon, 110 Wn.2d at 679 (quoting Petrillo v. Syntex Labs., Inc., 148 Ill. App. 3d 581, 595, 499 N.E.2d 952 (1986), appeal denied, 113 Ill. 2d 584, cert. denied sub nom. Tobin v. Petrillo, 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232 (1987)).
*231Petrillo v. Syntex Labs., Inc., supra, cited by this court in Loudon, describes the nature of a physician’s fiduciary duty:
There is an implied promise, arising when the physician begins treating the patient, that the physician will refrain from engaging in conduct that is inconsistent with the "good faith” required of a fiduciary. The patient should, we believe, be able to trust that the physician will act in the best interests of the patient thereby protecting the sanctity of the physician-patient relationship.
Petrillo, 148 Ill. App. 3d at 594.
When a physician is treating a patient who is also a litigant, the physician’s fiduciary duty to act in the patient’s best medical interest includes a duty to avoid conduct that is adverse to the patient’s legal interest. As one Pennsylvania court explains:
We are of the opinion that members of a profession, especially the medical profession, stand in a confidential or fiduciary capacity as to their patients. They owe their patients more than just medical care for which payment is exacted; there is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed. That further includes a duty to refuse affirmative assistance to the patient’s antagonist in litigation.
Alexander v. Knight, 197 Pa. Super. 79, 177 A.2d 142, 146 (1962) (per curiam).
Of course, when a patient becomes a party to a lawsuit and puts his or her physical condition in issue, the need to protect the physician-patient relationship must be balanced against the need to obtain information regarding the patient’s alleged injuries. In this state, the Legislature has struck this balance by lifting the statutory shield against privileged communication to the extent necessary to obtain relevant information regarding the patient’s condition. See RCW 5.60.060(4)(b). WTien the physician-patient privilege is waived, however, our obligation to protect the fiduciary nature of the relationship is not likewise abandoned. It is here that we must be most cautious and confine the treating physician’s testimony to that which is pertinent to the patient’s prognosis, diagnosis and course of treatment.
*232In Loudon, the unique nature of the physician-patient relationship and its intimate connection to treatment of a patient’s condition led this court to place limitations on discovery techniques even after the statutory protection was waived. Similarly, in this case, our duty to preserve the sanctity of the physician-patient relationship requires us to carefully scrutinize the admissibility of adverse opinion evidence offered by a treating physician against his or her patient.
By participating in the defense’s case, a treating physician necessarily betrays his or her patient’s confidence. To the extent the treating physician’s testimony is required to establish the patient’s condition, the testimony is a necessary tradeoff between the physician’s fiduciary duty to the patient and the duty to further the search for truth in the legal proceeding. But when the physician ceases to be a fact witness and becomes the defense’s expert witness on standards of care, the balance shifts. The physician’s testimony is no longer an integral component of the fact-finding process, and, instead, becomes part of the defense’s litigation strategy.
In Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (1984), a New Jersey Superior Court faced with this question prohibited a treating physician’s adverse expert testimony. After recognizing the fiduciary nature of the physician-patient relationship, and distinguishing the situation where the treating physician testifies adversely regarding the plaintiff’s condition or course of treatment, the court concluded:
Defendants argue that a physician volunteering to testify as a defense expert does not in any way damage the essence of the relationship with the patient because the quality of medical treatment is not lessened. But it could not help but have a detrimental effect on the quality of the relationship, and who can say that this would not thereby affect the well-being of the patient.
Piller, 194 N.J. Super, at 398.
The court’s rationale in Piller is strikingly similar to our rationale in Loudon for prohibiting ex parte contact with a *233patient’s treating physician. Certainly the threat that ex parte contact will "have a chilling effect on the physician-patient relationship and hinder further treatment”, Loudon, 110 Wn.2d at 679, is no greater than the threat that a treating physician’s gratuitous adverse testimony will likewise erode the patient’s trust and hinder further treatment.
Almost always, and certainly in this case,3 the defense can find other experts to provide the same testimony being solicited of the plaintiff’s treating physician. The defense selects the treating physician precisely because he or she is ethically committed to the patient’s best interests and juries are likely to give this fact great weight. Yet, in reality the doctor may well have divided loyalties. "[A] doctor may be persuaded for reasons of professional and economic self-interest to assist the defense”. Corboy, Ex Parte Contacts Between Plaintiff’s Physician and Defense Attorneys: Protecting the Patient-Litigant’s Right to A Fair Trial, 21 Loy. U. Chi. L.J. 1001, 1022 (1989-1990). Limiting a treating physician’s testimony to that which is necessary to establish the contested facts would reduce the incentive and opportunity for a treating physician to breach his or her fiduciary duty.
We must take great care not to exploit the physician-patient relationship. As litigation techniques embrace increasingly aggressive "hardball” tactics, we too must be increasingly vigilant in protecting the rights of litigants in our courts. The potentially devastating effect on a patient’s well being by this gratuitous testimony is too high a price to pay for asserting his or her right to a civil remedy. I conclude the fiduciary nature of the relationship should preclude physicians from testifying as expert witnesses on standards of care, at least when alternate testimony is available to the defense.
II
I reach the same result under an ER 403 analysis. The Court of Appeals correctly recognized that Dr. Duenhoelter’s testimony in this case "inevitably present[ed] a high risk of *234unfair prejudice”. Carson v. Fine, 67 Wn. App. 457, 464, 836 P.2d 223 (1992). The "prejudice arises from the fact that plaintiffs will have to answer the argument that 'their own doctor says there is no malpractice’ ”. Carson, 67 Wn. App. at 464-65 (quoting Piller, 194 N.J. Super, at 399). Such testimony can wreak havoc with a plaintiff’s case and possibly sound its death knell. The prejudicial impact of a treating physician’s adverse expert testimony almost always outweighs the probative value of the testimony. Therefore, I agree with the Court of Appeals that an appellate ER 403 evaluation of the potential prejudice inherent in this type of testimony requires on-the-record balancing by the trial court. I would place particular emphasis on whether there is a compelling need for the defense to call this particular doctor and whether there are other experts available. See Carson, 67 Wn. App. at 466. Applying these factors to the facts of this case, I find no compelling reason to permit this testimony.
Utter and Brachtenbach, JJ., concur with Johnson, J.
Reconsideration denied May 11, 1994.
he record suggests that several alternative experts were available.