Board of Registration for Healing Arts v. Spinden

• Decision Date: 09 October 1990
• Docket Number: No. WD,WD
• Citation: 798 S.W.2d 472
• Parties: In re BOARD OF REGISTRATION FOR THE HEALING ARTS, Appellant, v. Paul M. SPINDEN, Respondent. 42927.
• Court: Missouri Court of Appeals

Page 472

798 S.W.2d 472

In re BOARD OF REGISTRATION FOR THE HEALING ARTS, Appellant, v. Paul M. SPINDEN, Respondent.

No. WD 42927.

Missouri Court of Appeals Western District.

Oct. 9, 1990.

Rehearing Denied Dec. 4, 1990.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for appellant.

G. Keith Phoenix, St. Louis, for respondent.

Before LOWENSTEIN, P.J., and FENNER and ULRICH, JJ.

LOWENSTEIN, Presiding Judge.

The narrow issue posed in this action in prohibition concerns the limits of discovery in an administrative case. Specifically, should a doctor, whose license is governed by a board that has filed a disciplinary complaint against him, be allowed to discover from the board before trial: 1) incident, occurrence or investigative reports proposed or possessed by the board; 2) reports created by or in the Board's possession relating to the facts of the complaint; 3) statements taken relating to the facts; and, 4) documents provided by the board to any person expected to be called as an expert witness? The Board of Registration for the Healing Arts (Board) objected to a doctor's discovery based on the attorney-client privilege and the work product doctrine. The circuit court ultimately affirmed the ruling of the Administrative Hearing Commission's (AHC) commissioner, respondent Spinden, and allowed discovery.

The Board was created under § 334.120.1, RSMo 1986 ¹ "for the purpose of registering, licensing and supervising all physicians and surgeons ... in this state." Under § 334.240, the Board licenses and supervises physicians. It also investigates claims after receiving information that a doctor has violated a law pertaining to the practice of medicine. Upon probable cause, the board files a "complaint" with the A.H.C. See C.S.R. 15-1.010 through 2.170. The A.H.C. conducts hearings and may order suspension, revocation, or probation of the license. Under the law and the Code of State Regulations any party may obtain discovery in the same manner and on the same conditions as provided by the Rule for circuit court. After hearing, the matter may be appealed to circuit court. In this matter the Board on March 13, 1989 filed a complaint pursuant to §§ 621.015-621.205 against a licensed physician, Richard Lagueruela, an anesthesiology resident at Children's Hospital, Washington University, St. Louis, Missouri. As early as September 1988 the Board and counsel from the Attorney General's office began investigating the doctor. The Board sought, "disciplinary action against the license of ... Lagueruela to practice the healing arts for violations of Chapter 334...."

The violations spelled out by the complaint chronicle a sad series of events that are basically not in dispute. A thirteen year old patient had a spinal fusion to correct curvature of the spine caused by Duchene's muscular dystrophy. After time on a ventilator, the child developed "Adult Respiratory Distress Syndrome." Following two meetings with the doctor, the parents elected to withdraw ventilator support and have the boy "no-coded," which means that no heroic effort would be made if respiratory arrest occurred. Without filling out the required prescriptions, Dr. Laguereula administered morphine sulfate, pheno-barbital sodrin, and potassium chloride, apparently to ease the final pain after disconnecting the ventilator. Failure to document the use of these drugs constituted the first count of the Board's complaint; the unhooking of the ventilator constituted the second count. The Board's third count alleges that Dr. Lagueruela deliberately misstated the primary cause of death on the death certificate as Adult Respiratory Distress Syndrome instead of the administration of drugs.

When faced with discovery requests, the Board proclaimed it had "provided the names of persons who have knowledge in answers to interrogatories and respondent may contact these witnesses directly." The law of this state has long been that names and addresses of witnesses are not normally subject to any work product immunity. State ex rel. Mueller v. Dixon, 456 S.W.2d 594, 598 (Mo.App.1970). But Dr. Lagueruela continued to seek discovery of the actual reports and statements. The A.H.C.'s hearing officer rejected the Board's claims of attorney-client privilege and work product, and ordered the Board to comply with discovery. The Board submitted affidavits of its attorney and investigators to show that the materials fell under the attorney-client privilege. In sum, these affidavits discussed when and why interviews and investigations were conducted after the Board set up this file concerning the doctor. Spinden's order hones in on the information sought under the writ as being primarily 1) the reports of facts prepared by the Board prior to the attorney entering the case, 2) reports of facts which "at some point [were] given to the Board's attorney," and, 3) statements of witnesses. This order specifically noted that if any part of the materials were truly the impressions of conclusions or legal theories of Board counsel, these parts would be protected.

The Board obtained a preliminary order prohibiting Spinden from enforcing discovery, but the circuit court then quashed its writ. This appeal followed.

In an action for prohibition, the law presumes that the trial judge acted correctly. State ex rel. Martin v. Peters, 649 S.W.2d 561, 563 (Mo.App.1983). To overcome this presumption, the party seeking prohibition has the burden to show that the trial judge exceeded his jurisdiction. Id. Decisions pertaining to discovery are reversed only for an abuse of discretion. Williams Carver Co. v. Poos Brothers, Inc., 778 S.W.2d 684, 687 (Mo.App.1989).

As stated earlier, the Rules apply to discovery issues before the A.H.C. Section 536.073.2(1). The applicable rule is 56.01, which governs general discovery principles. Rule 56.01(b)(1) allows parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." (Emphasis added.) Rule 56.01(b)(3) governs discovery of trial preparation materials. It permits a party to discover "documents and tangible things otherwise discoverable under subdivision (b)(1) of this Rule 56.01 ..." (Emphasis added.) Thus, any material that is privileged under Rule 56.01(b)(1) is not discoverable under rule 56.01(b)(3).

Some confusion may exist because information falling under either the attorney-client or the work product concepts was absolutely immune from discovery before 1975. Rule 56.01, effective as of January 1, 1975, changed this practice. Subdivision (b)(1) retained complete immunity, absent a client's waiver, for the attorney-client privilege. But Subdivision (b)(3) demoted work product to a qualified immunity and permitted discovery only upon a showing of need and hardship. May Dept. Stores Co. v. Ryan, 699 S.W.2d 134, 137 (Mo.App.1985). Thus, if material sought to be discovered is classified under the attorney-client privilege, it is absolutely immune from discovery, and the work product doctrine issue becomes irrelevant.

The Board's first point on appeal is that Dr. Lagueruela seeks to discover materials that are privileged under Rule 56.01(b)(1). The attorney-client privilege encompasses "any professionally oriented communication between attorney and client ... regardless of [whether it was prepared in] anticipation of litigation." May Dept. Stores Co. v. Ryan, 699 S.W.2d at 136. The phrase "professionally oriented communication" is vague. Both the appellant Board and the respondent Spinden rely on State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978), to resolve the issue. Great American was an original action in prohibition to decide whether three letters concerning fire loss claims, written by an attorney to his clients (insurance companies), were protected from discovery by the attorney-client privilege. The Great American court held that the letters fell within the ambit of attorney-client privilege, and it issued a permanent writ of prohibition. The players in the case were: (1) Cannova, owner of a restaurant destroyed by fire; (2) Mid-Continent Bank, loss-payee under Cannova's insurance policies; (3) insurance companies which issued the policies, also the relators in the case; (4) Risjord, author of the letters in question and also attorney to relators; and (5) GAB, investigator hired by Risjord and his clients. The letters contained: (1) results of attorney Risjord's investigation; (2) Risjord's conclusions, opinions, and impressions concerning the investigation results and case strategy; and (3) Risjord's recommendations to his clients (relators) about what they should do in the case.

Here the Board contends that as long as the party opposing discovery meets a three-prong test set out in Great American, the attorney-client privilege automatically attaches to prevent discovery. This test is as follows: (1) the attorney-client relationship must have existed at the time the communication was made or advice given; (2) the attorney-client relationship must have existed as to the subject matter of the communication or advice, or (3) the communication must have been made to the attorney in his professional capacity and on account of the attorney-client relationship. State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d at 386.

Spinden concedes that actual communications between an attorney and his client are privileged, but contends that investigative reports prepared by the client or at his direction are not privileged. The Great American court accurately characterizes the attorney-client relationship and the attorney-client privilege:

When a client goes to an attorney and asks him to represent him on a claim which he believes he has against someone or which is being asserted against him, even if he as yet has no knowledge or information about the claim, subsequent communications by the attorney to the client...