September 12, 1997
Record No. 962267





Paul M. Peatross, Jr., Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Hassell,
Keenan, and Koontz, JJ., and Poff, Senior Justice

Generally, Code ? 8.01-399
prohibits a lawyer from obtaining information from a physician in
connection with pending or threatened litigation without the
consent of the physician’s patient except through discovery. The
dispositive issue in this appeal is whether a lawyer violated
this statutory prohibition.

Colleen M. Roller filed a medical malpractice action against
Dr. John A. Jane, contending that Dr. Jane exceeded the
authorized scope of a certain surgical procedure and, as a
result, Roller was rendered a paraplegic. While the malpractice
action was pending, Roller filed a motion for injunctive relief
and for sanctions, claiming that William H. Archambault, Esquire,
had violated Code ? 8.01-399.
The trial court found that Archambault had violated the statute;
however, the court did not impose any sanctions. Archambault

The material facts are undisputed. On September 5, 1991, Dr.
Jane, an attending physician at the University of Virginia Health
Sciences Center (the Center), performed surgery on Roller’s
spine. Dr. Karen Jean Schwenzer, another attending physician at
the Center, administered the anesthesia during the surgery.

Piedmont Liability Trust (the Trust) provided medical
malpractice liability insurance and legal representation to the
Center’s attending physicians. Archambault was staff counsel for
the Trust and served as counsel to the Center’s attending
physicians. As such, he not only provided legal advice and
representation to the physicians but also supervised and
monitored all litigation involving them.

The Trust hired outside counsel to represent Dr. Jane in
Roller’s malpractice action. On October 9, 1995, Dr. Jane’s
counsel informed Archambault that Roller’s counsel wanted to
depose Dr. Schwenzer. Pursuant to his duties as Trust staff
counsel, Archambault contacted Dr. Schwenzer, informed her of the
request to take her deposition, and obtained available dates
therefor. During their conversation, Dr. Schwenzer requested that
Archambault represent her at the deposition, and Archambault

Prior to the deposition, Archambault and Dr. Schwenzer met and
discussed the malpractice case. Dr. Schwenzer told Archambault
about her recollections of the events during the surgery, and
Archambault conveyed this information to Dr. Jane’s counsel.
Thereafter, Archambault appeared at Dr. Schwenzer’s deposition.

This appeal involves subsections D and F of Code ? 8.01-399. Code ? 8.01-399(D) provides
as follows:

Neither a lawyer, nor anyone acting on the lawyer’s
behalf, shall obtain, in connection with pending or
threatened litigation, information from a practitioner of any
branch of the healing arts without the consent of the patient
except through discovery pursuant to the Rules of the Court
as herein provided.

Code ? 8.01-399(F)
provides, in pertinent part, as follows:

Nothing herein shall prevent a duly licensed practitioner
of the healing arts from disclosing any information which he
may have acquired in attending, examining or treating a
patient in a professional capacity where such disclosure is
necessary in connection with . . . the protection
or enforcement of the practitioner’s legal rights including
such rights with respect to medical malpractice actions
. . . .

Archambault contends that Code ? 8.01-399(F) expressly
allows a physician to disclose information acquired in attending
a patient where such disclosure is necessary in connection with
the protection or enforcement of the physician’s legal rights.
Thus, Archambault concludes, because Dr. Schwenzer was allowed to
disclose information to him as her counsel, he did not violate
the statute when he obtained such information.

Roller contends, however, that "Archambault violated
[Code ?] 8.01-399 by
serving as `counsel’ for [Dr. Schwenzer] when he was already
serving as insurance claims coordinator and de facto
co-counsel for [Dr. Jane]." Roller asserts that she
"had a right to expect that [Dr. Schwenzer] would not
disclose information . . . absent legal compulsion."

The trial court, in rejecting Archambault’s contention, stated
that "[t]here is no necessity of protecting or enforcing
[Dr.] Schwenzer’s legal rights" because Dr. Schwenzer was
not a party to the malpractice litigation and she could not have
been drawn into the litigation because all applicable statutes of
limitations had run. We, however, agree with Archambault’s

It is firmly established that a court must accept a statute’s
plain meaning when the statute is clear and unambiguous. Wall
v. Fairfax County School Board, 252 Va. 156, 159, 475
S.E.2d 803, 805 (1996). In the present case, we think Code ? 8.01-399(F) clearly
permits Dr. Schwenzer’s disclosure of patient information
"in connection with . . . the protection or
enforcement of [her] legal rights." These "legal
rights" include, but are not limited to, such rights
"with respect to medical malpractice actions" and,
thus, include such rights with respect to being deposed.
Subsection F does not require that the physician be an actual or
potential party to a medical malpractice action. Therefore,
Archambault, as the recipient of the properly disclosed
information, could not have violated Code ? 8.01-399(D).

We hold, therefore, that Archambault did not violate Code ? 8.01-399.[2]
Accordingly, we will reverse the trial court’s judgment and enter
final judgment in favor of Archambault.

Reversed and final judgment.





[1] Justice Stephenson prepared the
opinion in this case prior to the effective date of his
retirement on July 1, 1997, and the Court subsequently adopted
the opinion.

Code ? 8.01-399 does
not purport to deal with any concern Roller may have regarding
any conflict of interest arising out of Archambault’s
representation of Dr. Schwenzer at her deposition.