,Concurring and Dissenting.—I agree with the majority that
a doctor does not violate the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) by releasing a patient’s medical information to a lawyer or insurer defending another doctor against whom the patient has asserted a claim for medical malpractice. And I agree with Justice Mosk that when a lawyer or insurer interviews a doctor to gather information for use in defending a claim of medical malpractice, the conduct of all participants in the interview is protected by the litigation privilege (Civ. Code, § 47, subd. (b)).
But I part company with the majority and with Justice Mosk when it comes to the right of privacy guaranteed by our state Constitution. Although it is true that by asserting a medical malpractice claim a patient relinquishes the right of privacy as to matters directly relevant to the claim and essential to its fair resolution, the patient retains in full the right of privacy as to all confidential information not meeting this strict test of legal relevance. *56Because the complaint here alleges that plaintiff’s doctor revealed matters that are unlikely to have direct relevance to her malpractice claim, and because the litigation privilege does not bar a constitutional right of action, plaintiff should be permitted to go forward with her cause of action for violation of the constitutional right of privacy.
Finally, I do not join the majority to the extent it may appear to give unqualified approval to ex parte interviews1 of a medical malpractice plaintiff’s doctor, without the knowledge or consent of the plaintiff or the plaintiff’s counsel. The propriety of this practice has sharply divided this country’s appellate courts, and I would leave this matter open for resolution in a proper case.
I. Facts
Dr. Geis treated plaintiff Doris Heller for an infection in one finger. Despite Geis’s treatment, the infection worsened to the point that it became necessary to amputate the finger. Geis and Dr. Yamaguchi performed the amputation, which occurred in two stages. After the amputation, plaintiff developed reflex sympathetic dystrophy, which is characterized by burning pain and swelling. Yamaguchi treated plaintiff for this condition.
While plaintiff was under the care of Dr. Yamaguchi, she commenced suit against Dr. Geis for malpractice in the diagnosis and treatment of the original infection. During the course of this lawsuit, Yamaguchi was deposed and he revealed that a representative of Norcal Mutual Insurance Company (the professional liability insurer of both Geis and Yamaguchi; hereafter Norcal) and the lawyer who was representing Geis had interviewed Yamaguchi on several occasions. Following this revelation, plaintiff settled her action against Geis and commenced this action against Yamaguchi, Norcal, and others.
In the complaint at issue here (plaintiff’s fourth amended complaint), plaintiff has alleged that Norcal and Dr. Yamaguchi “conspired and agreed to obtain and release private, intimate, personal, financial, and confidential medical information and records without the consent or knowledge of [plaintiff] or her attorney.” Plaintiff further alleges that this information and these records were “obtained and provided to Norcal in order to obtain an economic advantage over [plaintiff] in her suit against Dr. Geis . . . .”
*57Plaintiff’s complaint attempts to state claims for medical negligence (against Yamaguchi), negligent infliction of emotional distress (against Yamaguchi and Norcal), intentional infliction of emotional distress (against Yamaguchi and Norcal), intentional interference with the doctor-patient relationship (against Norcal), violation of the Confidentiality of Medical Information Act (against Yamaguchi), unfair business practices (against Norcal and Yamaguchi), concealment (against Norcal and Yamaguchi), and violation of the constitutional right of privacy (against Norcal and Yamaguchi).
Yamaguchi and Norcal each challenged plaintiff’s complaint by demurrer. The trial court sustained Norcal’s demurrer without leave to amend as to each of plaintiff’s claims against Norcal, and it granted a judgment dismissing Norcal from the action. As for Yamaguchi, the trial court overruled his demurrer to the cause of action for medical negligence, and it sustained without leave to amend Yamaguchi’s demurrer to each of the other causes of action. Plaintiff appealed from the judgment of dismissal in favor of Norcal, and she petitioned the Court of Appeal for a writ of mandate to overturn the trial court’s ruling barring each of her claims against Yamaguchi except the claim for medical negligence.
The Court of Appeal issued an order to show cause on plaintiff’s mandate petition, and it consolidated that proceeding with the appeal from the judgment of dismissal in favor of Norcal. In its opinion in these consolidated proceedings, the Court of Appeal held that the litigation privilege (Civ. Code, § 47, subd. (b)) operated to bar plaintiff’s claims against Norcal and Yamaguchi for negligent and intentional infliction of emotional distress, interference with the doctor-patient relationship, unfair business practices, and concealment. The Court of Appeal concluded that the litigation privilege did not apply to plaintiff’s claims for violation of the Confidentiality of Medical Information Act and violation of the constitutional right of privacy, and that the pleading of these claims was adequate to withstand demurrer. This court granted petitions for review by Norcal and Yamaguchi.
II. The Confidentiality of Medical Information Act
In simple language, the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) states: “No provider of health care shall disclose medical information regarding a patient of the provider without first obtaining an authorization . . . .” (Civ. Code, § 56.10, subd. (a).) This core provision is followed by a long list of exceptions, couched in language that is anything but simple.
At issue here is this exception: “A provider of health care may disclose medical information ... [^Q ... to organized committees and agents of *58professional societies or of medical staffs of licensed hospitals, or to licensed health care service plans, or to professional standards review organizations, or to utilization and quality control peer review organizations as established by Congress in Public Law 97-248 in 1982, or to persons or organizations insuring, responsible for, or defending professional liability which a provider may incur, if the committees, agents, plans, organizations, or persons are engaged in reviewing the competence or qualifications of health care professionals or in reviewing health care services with respect to medical necessity, level of care, quality of care, or justification of charges.” (Civ. Code, § 56.10, subd. (c)(4).)
This language, dense and opaque on first reading, appears on closer examination to fit the situation alleged in this case, in which a doctor (Yamaguchi) released to a representative of a professional liability carrier (Norcal), and to an attorney, medical information about a patient (plaintiff) who had asserted a claim of medical malpractice against another doctor (Geis) who was the carrier’s insured and the attorney’s client. To evaluate plaintiff’s claim for settlement purposes, and to prepare a defense in the event of trial, Norcal and Geis’s lawyer of necessity had to determine whether the professional services that Geis had supplied to plaintiff measured up to the prevailing standard of care. To make that determination, they sought and obtained medical information in Yamaguchi’s possession. Isolating the relevant statutory language, it appears that a doctor or other provider of health services may disclose medical information “to persons or organizations insuring, responsible for, or defending professional liability which a provider may incur, if the . . . organizations, or persons are engaged ... in reviewing health care services with respect to . . . quality of care . . . .” (Civ. Code, § 56.10, subd. (c)(4).) That is precisely the situation alleged here. Accordingly, I agree with the majority that plaintiff has not stated a claim for violation of the Confidentiality of Medical Information Act.
I hasten to add two observations. First, the exception at issue here is permissive, not mandatory. When a patient has asserted a malpractice claim against one doctor, another doctor treating the same patient “may” disclose medical information to the insurer or attorney representing the accused doctor. (Civ. Code, § 56.10, subd. (c)(4).) But in this situation the Confidentiality of Medical Information Act imposes no obligation on the doctor to disclose the medical information without the patient’s consent.
Second, the statute says nothing about the circumstances under which the authorized disclosure of confidential medical information is to take place. Thus, the statute does not purport to answer the question whether such disclosure should be permitted to occur in secret, without prior notice to the *59patient. As I explain below, appellate courts throughout the nation have hotly debated this question, and this court should not attempt to resolve it in this case.
III. The Litigation Privilege
Because it promotes the finality of judgments, encourages open channels of communication in judicial proceedings, and allows attorneys to zealously protect their clients’ interests without fear of retribution by opposing litigants, the litigation privilege of Civil Code section 47, subdivision (b), has been given broad scope. (Silberg v. Anderson (1990) 50 Cal.3d 205, 213-214 [266 Cal.Rptr. 638, 786 P.2d 365].) Thus, the privilege is absolute and immunizes the communications of parties, attorneys, and potential witnesses from tort liability on a wide variety of both common law and statutory theories, with the sole exceptions being liability for malicious prosecution (id. at pp. 215-216; see also Rubin v. Green (1993) 4 Cal.4th 1187 [17 Cal.Rptr.2d 828, 847 P.2d 1044]) and liabilities directly established by constitutional command. Here, the ex parte interview was a communication in the course of litigation and thus within the litigation privilege’s zone of protection against all of plaintiff’s causes of action, save only the claim for invasion of the constitutional right of privacy. (See Moses v. McWilliams (1988) 379 Pa.Super. 150 [549 A.2d 950].)
IV. The Constitutional Right of Privacy
The California Constitution declares that “All people are by nature free and independent and have inalienable rights,” and that among these inalienable rights are “obtaining safety, happiness, and privacy.” (Cal. Const., art. I, §1.)
In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633], this court held that the privacy clause of the state Constitution “creates a right of action against private as well as government entities.” (Hill v. National Collegiate Athletic Assn., supra, at p. 20.) We further held that the elements of a claim for violation of the constitutional privacy right are: “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Id. at pp. 39-40.)
Here, both the majority and Justice Mosk conclude that plaintiff’s complaint is defective as to the second element—the reasonable expectation of privacy. They note that by bringing a malpractice action against Dr. Geis, plaintiff opened her medical history to discovery as to matters put in issue by the allegations against Geis.
*60This is all true as far as it goes, but it does not defeat plaintiff’s claim for violation of privacy. Plaintiff sued Dr. Geis for professional negligence in diagnosing and treating an infection of her finger. Any medical information in the possession of Dr. Yamaguchi bearing on the issues of the existence of the alleged negligence or the extent of damages resulting from the alleged negligence would be directly relevant to the issues in the Geis litigation. As to any such information, plaintiff could have no reasonable expectation of privacy after asserting her malpractice claim. But she preserved her reasonable expectation of privacy as to any other information she imparted to Yamaguchi in confidence in the course of their doctor-patient relationship.
As this court has observed, “Plaintiff is not compelled, as a condition to entering the courtroom, to discard entirely her mantle of privacy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841-842 [239 Cal.Rptr. 292, 740 P.2d 404].) Although the filing of a lawsuit may be deemed a waiver of privacy as to matters embraced by the action, we have emphasized that the scope of this waiver “must be narrowly rather than expansively construed.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859 [143 Cal.Rptr. 695, 574 P.2d 766]; accord, Vinson v. Superior Court, supra, at p. 842.) Matters that would otherwise be protected by the constitutional privacy right are discoverable only if “directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court, supra, at p. 842.) The party seeking access to constitutionally protected information has the burden of proving direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017 [9 Cal.Rptr.2d 331].)
For example, the Court of Appeal has held that a plaintiff who seeks damages for personal injuries, including pain and suffering, does not thereby surrender the right to privacy in postinjury psychotherapeutic records. (Davis v. Superior Court, supra, 7 Cal.App.4th 1008, 1017.) The court summarized its conclusion this way: “By limiting her claim for emotional distress to pain and suffering associated with stated physical injuries, and by explaining that the [Cedar Women’s Center] provided no treatment in connection with the injuries for which compensation was sought, petitioner established that it is not reasonably probable that the records are directly relevant to the condition she placed in issue.” (Ibid.)
This court reached essentially the same conclusion when construing the scope of the patient-litigant exception to the doctor-patient privilege (Evid. Code, § 996). As the Courts of Appeal have recognized, the doctor-patient privilege and the right of privacy are “closely related protections against public disclosure of private information.” (Binder v. Superior Court (1987) 196 Cal.App.3d 893, 899 [242 Cal.Rptr. 231]; accord, Davis v. Superior Court, supra, 7 Cal.App.4th 1008, 1013.)
*61In this state, the doctor-patient privilege protects “information, including information obtained by an examination of the patient, transmitted between a patient and his physician in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the physician is consulted, and includes a diagnosis made and the advice given by the physician in the course of that relationship.” (Evid. Code, § 992.) Under the patient-litigant exception, there is no doctor-patient privilege “as to a communication relevant to an issue concerning the patient if such issue has been tendered by” the patient or any party claiming through the patient. (Evid. Code, § 996.)
In Britt v. Superior Court, supra, 20 Cal.3d 844, owners and residents of homes near an airport brought suit against the owner of the airport seeking, among other things, damages for personal injuries and emotional disturbance caused by the noise, vibrations, air pollution, and smoke produced by operation of the airport. During discovery, the airport owner served the plaintiffs with interrogatories demanding a complete account of each plaintiff’s lifetime medical history, including any treatment for mental or emotional disturbance. In this court, the airport owner asserted that under the patient-litigant exception, a patient waived the doctor-patient and psychotherapist-patient privileges by instituting a claim for physical or mental injury. As we had done previously (see In re Lifschutz (1970) 2 Cal.3d 415, 435 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]), this court “emphatically rejected such a broad rendition of the statutory exception.” (Britt v. Superior Court, supra, at p. 863.) We concluded that plaintiffs were “entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Id. at p. 864.)
Here, the complaint alleged, as I previously noted, that Dr. Yamaguchi disclosed to Norcal “private, intimate, personal, financial, and confidential medical information and records without the consent or knowledge of [plaintiff] or her attorney.” Because the case comes before us on demurrer, we must assume that the allegations of the complaint are true, and we may not look beyond those allegations to ascertain the facts. To conclude, as the majority and Justice Mosk do, that all of the confidential material Yamaguchi disclosed to Norcal was directly relevant to plaintiff’s malpractice claim against Dr. Geis and essential to that claim’s fair resolution is sheer speculation, and improbable speculation at that. In particular, it is difficult to conceive how financial information, disclosed in confidence in the course of *62the doctor-patient relationship, could have any direct relevance to plaintiff’s malpractice claim against Dr. Geis.2
The majority asserts in a footnote that any information plaintiff disclosed to Yamaguchi concerning her financial and emotional state would be unrelated to her medical condition and for this reason not protected by the constitutional privacy right. (Maj. opn., ante, p. 43, fn. 4.) As authority for this assertion the majority cites only Kizer v. Sulnick (1988) 202 Cal.App.3d 431, 439 [248 Cal.Rptr. 712], but in that case the court concluded that no doctor-patient relationship had existed. Here, it is undisputed that plaintiff was Dr. Yamaguchi’s patient. Consistent with the Evidence Code’s definition of confidential information provided in Evidence Code section 992 (that is, all information transmitted between patient and physician in the course of that relationship and in confidence), I would not exclude confidential information about a patient’s emotional or financial condition from the reach of the constitutional privacy right merely because it may not have been strictly necessary to the task of diagnosing and treating the patient.
When a patient has disclosed information to a doctor in confidence, in the course of their professional relationship, a requirement that the information be medically relevant before it will qualify for legal protection is, in my view, destructive of the confidence and trust that are essential to a healthy physician-patient relationship, and it is inconsistent with the purposes of the constitutional privacy right. This is because patients generally cannot be expected to know when information is or is not medically relevant. As one court has put it: “Since the layman is unfamiliar with the road to recovery, he cannot sift the circumstances of his life and habits to determine what is information pertinent to his health. As a consequence, he must disclose all information in his consultations with his doctor—even that which is embarrassing, disgraceful or incriminating. To promote full disclosure, the medical profession extends the promise of secrecy . . . .” (Hammonds v. Aetna Casualty & Surety Company (N.D.Ohio 1965) 243 F.Supp. 793, 801.) Not knowing when information is medically relevant, but advised by this court that only medically relevant information is protected, patients will be inhibited in relating sensitive or potentially embarrassing information to their physicians.
Because the complaint does not show on its face that all the information Dr. Yamaguchi disclosed was directly relevant to the matters at issue in *63plaintiff’s action against Dr. Geis, I would permit plaintiff to proceed on her claim for violation of the constitutional privacy right.
V. Ex Parte Interviews With Litigant’s Doctor
Should the law permit a party litigant to privately interview and obtain medical information from the opposing party’s doctor without the opposing party’s knowledge or consent? Published decisions of federal courts and courts of our sister states have debated this question with great thoroughness and have given conflicting answers. (See generally, Annot., Discovery: Right to Ex Parte Interview with Injured Party’s Treating Physician (1986) 50 A.L.R.4th 714.) There is also no shortage of commentary in legal publications. (See, e.g., Woodard, Shielding the Plaintiff and Physician: The Prohibition of Ex Parte Contacts with a Plaintiffs Treating Physician (1991) 13 Campbell L.Rev. 233; Corboy, Ex Parte Contacts Between Plaintiffs Physician and Defense Attorneys: Protecting the Patient-Litigant’s Right to a Fair Trial (1990) 21 Loy. U. Chi. LJ. 1001; Asher, Ex Parte Interview with Plaintiffs Treating Physicians—The Offensive Use of the Physician-Patient Privilege (1990) 67 U.Det. L.Rev. 501; Note, Restricting Ex Parte Interviews with Nonparty Treating Physicians: Crist v. Moffatt (1990) 69 N.C. L.Rev. 1381; Note, Defendants’ Right to Conduct Ex Parte Interviews with Treating Physicians in Drug or Medical Device Cases (1989) 73 Minn. L.Rev. 1451.)
The question is not squarely posed here. We must decide in this case whether disclosure of medical information during an interview is an actionable violation of the Confidentiality of Medical Information Act, but a conclusion that the conduct is not actionable under the statute does not mean that courts are powerless to prevent such interviews or to impose conditions. Nevertheless, the majority’s rather offhand disapproval of Torres v. Superior Court (1990) 221 Cal.App.3d 181 [270 Cal.Rptr. 401] and Province v. Center for Women’s Health & Family Birth (1993) 20 Cal.App.4th 1673 [25 Cal.Rptr.2d 667] “to the extent [they] could be read to prohibit all ex parte contacts between a physician and his [sic] attorneys or insurers” (maj. opn., ante, p. 41) makes further discussion necessary.
The relationship of doctor to patient is a fiduciary one. (Stafford v. Shultz (1954) 42 Cal.2d 767, 111 [270 P.2d 1].) A doctor has not only a legal obligation, grounded in the doctor-patient privilege (Evid. Code, § 994) and the constitutional right of privacy (Cal. Const., art. I, § 1), but also a professional obligation to maintain the secrecy of patient confidences. (See Bus. & Prof. Code, § 2263 [“willful, unauthorized violation of professional confidence constitutes unprofessional conduct”].) The Judicial Council of the American Medical Association puts it this way: “The information disclosed to a physician during the course of the relationship between physician *64and patient is confidential to the greatest possible degree. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law.” (Current Opinions of the Council on Ethics and Judicial Affairs of the American Medical Association (1986) § 5.05, p. 21.)
As we have seen, a patient makes a limited waiver of the doctor-patient privilege by bringing an action for personal injury or medical malpractice. During the course of such litigation, the defendants have a right to discover any information in the possession of the plaintiff’s treating physicians that is directly relevant to matters at issue and essential to their fair resolution. Thus, the question is not whether relevant information must be disclosed, but the method of such disclosure. (See Manion v. N.P.W. Medical Center (M.D.Pa. 1987) 676 F.Supp. 585,593 [“. . . the prohibition against unauthorized ex parte contacts . . . affects defense counsel’s methods, not the substance of what is discoverable”].)
Some courts see no reason to bar or restrict defense counsel from conducting ex parte interviews of the plaintiff’s treating physicians (e.g., Lewis v. Roderick (R.I. 1992) 617 A.2d 119; Domako v. Rowe (1991) 438 Mich. 347, 360 [475 N.W.2d 30, 36]; Felder v. Wyman (D.S.C. 1991) 139 F.R.D., 85; Coralluzzo v. Pass (Fla. 1984) 450 So.2d 858; Doe v. Eli Lilly & Co. (D.D.C. 1983) 99 F.R.D. 126; Trans-World Investments v. Drobny (Alaska 1976) 554 P.2d 1148, 1152), and, in fact, have directed plaintiffs to execute authorization forms to facilitate the interviews. These courts emphasize, as does the majority here, that private interviews save time and money when compared to more formal methods of discovery (Domako v. Rowe, supra, 438 Mich, at p. 361; Doe v. Eli Lilly & Co., supra, at p. 128), and that the information disclosed in the ex parte interviews would be disclosed eventually anyway. They also maintain that private interviews are “conducive to spontaneity and candor in a way depositions can never be” (Doe v. Eli Lilly & Co., supra, at p. 128) and that they speed the settlement process by encouraging early investigation and evaluation of claims (Trans-World Investments v. Drobny, supra, 544 P.2d at p. 1152; Domako v. Rowe, supra, 438 Mich, at p. 361).
Taking a contrary position, other courts have held that in medical malpractice or personal injury litigation, defense counsel should never be permitted to interview a plaintiff’s nonparty treating physician ex parte without *65the plaintiff’s consent. (State ex rel. Kitzmiller v. Henning (1993) 190 W.Va. 142 [437 S.E.2d 452]; Cua v. Morrison (Ind. 1994) 636 N.E.2d 1248, adopting opn. published at (Ind.Ct.App. 1993) 626 N.E.2d 581; Crist v. Moffatt (1990) 326 N.C. 326, 332 [389 S.E.2d 41, 45]; Duquette v. Superior Court (1989) 161 Ariz. 269 [778 P.2d 634]; Loudon v. Mhyre (1988) 110 Wn.2d 675 [756 P.2d 138]; Linton v. City of Great Falls (1988) 230 Mont. 122 [749 P.2d 55]; Petrillo v. Syntex Laboratories, Inc. (1987) 148 Ill.App.3d 581, 591 [102 Ill.Dec. 172, 499 N.E.2d 952]; Nelson v. Lewis (1987) 130 N.H. 106 [534 A.2d 720]; Smith v. Ashby (1987) 106 N.M. 358 [743 P.2d 114]; Roosevelt Hotel Ltd. Partnership v. Sweeney (Iowa 1986) 394 N.W.2d 353; Weaver v. Mann (D.N.D. 1981) 90 F.R.D. 443, 445; Anker v. Brodnitz (1979) 98 Misc.2d 148, [413 N.Y.S.2d 582]; Wenninger v. Muesing (1976) 307 Minn. 405 [240 N.W.2d 333]; Fields v. McNamara (1975) 189 Colo. 284 [540 P.2d 327]; Hammonds v. Aetna Casualty & Surety Company, supra, 243 F.Supp. 793.)3
These courts point out that the spontaneity and candor that is one of the claimed virtues of informal interviews is also its principal vice. In the relaxed atmosphere of a private interview, a nonparty treating physician may be led to disclose confidential information not relevant to the litigation and therefore protected by the doctor-patient privilege and the doctor’s professional obligation to preserve confidentiality.4 (See, e.g., Karsten v. McCray (1987) 157 Ill.App.3d 1, 14 [109 Ill.Dec. 364, 509 N.E.2d 1376, 1384]; Wenninger v. Muesing, supra, 307 Minn. 405, 410-411 [240 N.W.2d 333, 336-337]; Manion v. N.P.W. Medical Center, supra, 676 F.Supp. 585, 594.)
The very possibility of unauthorized disclosure, these courts maintain, is destructive of the trust essential to a secure and productive doctor-patient *66relationship: “The presence of the patient’s counsel at the doctor’s interrogation permits the patient to know what his doctor’s testimony is, allays a patient’s fears that his doctor may be disclosing personal confidences, and thus helps preserve the complete trust between doctor and patient which is essential to the successful treatment of the patient’s condition.” (Wenninger v. Muesing, supra, 307 Minn. 405, 411 [240 N.W.2d 333, 337]; accord, Manion v. N.P.W. Medical Center, supra, 616 F.Supp. 585, 594; Loudon v. Mhyre, supra, 110 Wn.2d 675, 679 [756 P.2d 138, 141].)
In medical malpractice actions, moreover, defense counsel may use an ex parte interview with the plaintiff’s doctor to solicit sympathy for the defendant, and thereby compromise the doctor’s loyalty to the patient: “An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury’s award upon a physician’s professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physician’s views. The potential for impropriety grows even larger when defense counsel represents the treating physician’s own insurance carrier . . . .” (Manion v. N.P.W. Medical Center, supra, 616 F.Supp. 585, 594-595; see also Duquette v. Superior Court, supra, 161 Ariz. 269, 276 [778 P.2d 634, 641]; Anker v. Brodnitz, supra, 98 Misc.2d 148,153 [413 N.Y.S.2d 582, 585].)
The New Jersey Supreme Court has articulated a middle ground, in an attempt to reconcile the competing interests. In Stempler v. Speidell (1985) 100 N.J. 368 [495 A.2d 857, 50 A.L.R.4th 699], the court crafted a rule under which plaintiffs may be required to authorize their treating physicians to hold ex parte interviews with attorneys for the defendants, but on the condition that the defense lawyers provide the plaintiff’s lawyers with reasonable notice of the time and place of the interviews, a description of the anticipated scope of the interviews, and assurances that the physicians will be advised that their participation is entirely voluntary. The aim of the procedure is to provide plaintiffs’ lawyers with an opportunity to advise the doctors in advance of “any appropriate concerns as to the proper scope of the interview, and the extent to which plaintiff continues to assert the patient-physician privilege with respect to that physician.” (Id. at p. 382 [495 A.2d at p. 864].) The court recognized that in particular cases these safeguards might not be adequate: “Plaintiff may also seek and obtain a protective order if under the circumstances a proposed ex parte interview with a specific physician threatens to cause such substantial prejudice to plaintiff as to warrant the supervision of the trial court. Such supervision could take the form of an order requiring the presence of plaintiff’s counsel during the interview or, in extreme cases, requiring defendant’s counsel to proceed by deposition.” (Id. at p. 383 [495 A.2d at pp. 864-865].)
*67The majority does not suggest that a court could order a plaintiff to authorize defense counsel to interview the plaintiffs treating physicians ex parte. Absent such authorization, I would expect that few defense counsel would attempt to interview a plaintiff’s treating physician and few physicians would consent to be interviewed.5 As I understand it, the majority holds only that if an ex parte interview does occur without the plaintiff’s knowledge or consent, the physician does not thereby violate the Confidentiality of Medical Information Act and that Nordal’s ex parte interviews of Yamaguchi are not actionable under the facts of this case. Given this limited holding, issues concerning the propriety of ex parte interviews of nonparty treating physicians are certain to reach this court again. As has occurred in other states, such issues may arise when a plaintiff, invoking a trial court’s inherent authority to supervise discovery, moves for a protective order to bar or restrict ex parte interviews, or when a plaintiff moves at trial to exclude information disclosed during such interviews. When these issues return, in this or some other manner, I would hope that this court gives them the thorough consideration and analysis they deserve.
Conclusion
“The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.” (Doe v. Bolton (1973) 410 U.S. 179, 219 [35 L.Ed.2d 201,191, 93 S.Ct. 739] (conc. opn. of Douglas, J.).) For violation of that privacy right, our state Constitution provides a remedy by means of an action for damages. Here, plaintiff’s complaint alleges that her treating physician, Yamaguchi, engaged in wide-ranging ex parte discussions that may have disclosed intimate matters not relevant to plaintiff’s pending malpractice action. I would hold that plaintiff has stated a claim under our state Constitution for violation of her right of privacy.
“Ex parte” has been defined as “On one side only; by or for one party; done for, in behalf of, or on the application of, one party only.” (Black’s Law Dict. (5th ed. 1979) p. 517.) As used here, an “ex parte interview” is an interview conducted by one party litigant in the absence of other party litigants.
The complaint alleges that Dr. Yamaguchi knew that plaintiff “was under extreme emotional pressure from the suit [against Dr. Geis] and her medical condition, that she was seeing a psychologist to treat her and that her monthly income was due to decrease as a result of a note being paid off.” The complaint does not allege that Yamaguchi conveyed this precise information to Norcal, but this allegation illustrates the kind of confidential information, not relevant to plaintiff’s claim against Geis, that Yamaguchi may have disclosed to Norcal or to Geis’s attorney.
The Missouri Supreme Court has held that a plaintiff in a personal injury action may not be compelled to authorize defense counsel to meet ex parte with the plaintiff’s treating physicians. (State ex rel. Woytus v. Ryan (Mo. 1989) 776 S.W.2d 389, 395.) If the treating physician meets with defense counsel without the plaintiff’s consent and reveals confidential information not relevant to the personal injury action, the plaintiff may sue the physician for damages resulting from the unauthorized disclosure. (Brandt v. Medical Defense Associates (Mo. 1993) 856 S.W.2d 667, 670.) In the underlying personal injury action, however, the defense is free to use any evidence developed by the interview; the plaintiff has no sanction or remedy available. (Brandt v. Pelican (Mo. 1993) 856 S.W.2d 658, 662.)
The following comment is typical: “The possibility of inadvertent wrongful disclosure of confidential matters troubles us. We do not mean to question the integrity of doctors and lawyers or to suggest that we must control discovery in order to assure their ethical conduct. We are concerned, however, with the difficulty of determining whether a particular piece of information is relevant to the claim being litigated. Placing the burden of determining relevancy on an attorney, who does not know the nature of the confidential disclosure about to be elicited, is risky. Asking the physician, untrained in the law, to assume this burden is a greater gamble and is unfair to the physician. We believe this determination is better made in a setting in which counsel for each party is present and the court is available to settle disputes.” (Roosevelt Hotel Ltd. Partnership v. Sweeney, supra, 394 N.W.2d 353, 357.)
I assume that most defense counsel will follow the advice of a leading treatise on the law of medical malpractice: “[W]here there is no clear statute or rule permitting otherwise, defense counsel should confer with non-party physicians who treated plaintiff only with the knowledge and consent of the plaintiff and counsel. Not only is that the fair way, it avoids any implication of collusion or conspiracy which may appear from clandestine consultations. To the same end, plaintiff’s counsel should cooperate in voluntarily facilitating this aspect of the defense attorney’s job.” (1 Louisell & Williams, Medical Malpractice (1993) § 12.05, p. 12-12.)