Bower v. Murphy

• Decision Date: 29 September 1969
• Docket Number: No. 5--4958,5--4958
• Citation: 247 Ark. 238,444 S.W.2d 883
• Parties: William F. BOWER, Appellant, v. Oleeta MURPHY, Appellee.
• Court: Arkansas Supreme Court

Page 883

444 S.W.2d 883

247 Ark. 238

William F. BOWER, Appellant, v. Oleeta MURPHY, Appellee.

No. 5--4958.

Supreme Court of Arkansas.

Sept. 29, 1969.

Frierson, Walker & Snellgrove, Jonesboro, for appellant.

W. B. Howard and Jack Segars, Jonesboro, for appellee.

FOGLEMAN, Justice.

This appeal involves questions pertaining to the application of our statutes on discovery and related pretrial procedures as they relate to the physician-patient privilege. They arose in a personal injury action brought by appellee against appellant. She alleged that her injuries were sustained as a result of the automobile in which she was a passenger having been struck from the rear by a vehicle operated by the appellant on February 25, 1967. Her suit was filed on June 6, 1968. Appellant denied liability and pleaded other defenses. Appellee alleged that by reason of the collision she was caused to suffer severe and permanent injuries to the body generally and the neck and spine in particular.

On October 15, 1968, appellant filed a motion praying that the court, by proper pretrial order, require appellee to elect whether she would call medical witnesses at the trial and, if so, that appellant be permitted to take the deposition of Dr. James T. Robertson and Dr. Paul T. Stroud. The motion was heard by the trial court on the date of its filing. By written stipulation, it was agreed that if the deposition of Dr. James T. Robertson of Memphis, Tennessee, were taken, he would testify that he is a physician specializing in neurosurgery and that appellee was treated by him both before and after February 25, 1967. It was also stipulated that if the deposition of Dr. Paul T. Stroud of Jonesboro were taken he would testify that he is a practicing physician and that he treated appellee subsequent to the incident complained of and had caused x-rays to be made of her on February 27, 1967. It was also stipulated that appellee's counsel objected to any testimony by either physician as to any observations, treatment, diagnosis or communications on said occasions in the absence of a ruling of the trial court on appellee's objection. The trial court held that it was without power to grant the relief prayed in the motion.

On October 18, 1968, appellant took the discovery deposition of appellee. She admitted on that occasion that Dr. Stroud had treated her for other conditions prior to her injury. She also admitted that she had been treated by Dr. Robertson during the preceding three years and was still under his care. She refused to answer inquiries as to the conditions for which these doctors had previously treated her on the ground of privilege. She also failed to answer and objected to a question asking whether she had ever been told she had arthritis of the spine or neck. Further interrogation was abandoned when appellee's counsel stated that he was going to instruct her not to answer as to any communication made by her to any doctor, at any time, including the injury of which she complains and not to answer any question regarding what any doctor may have told her, at any time, relating to any condition from which she might suffer.

On October 24, 1968, appellant filed a motion to require appellee to answer these and other proper questions addressed to her concerning her previous medical condition and treatment. In her response, appellee again asserted her right to refuse to answer any question concerning any treatment administered to her by any physician, or any communication made by her to any physician for the purpose of enabling him to diagnose, prescribe, treat or do any act for her as a physician or surgeon while attending her in a professional character. Appellant also moved that she be required to answer certain inquiries by Dr. Barnett, to whom she had gone for examination upon appellant's request. The trial court found that the appellee properly refused to answer all these questions because they were within the medical privilege.

Upon the hearing of a motion to require appellant to deliver x-rays taken by Dr. Barnett and exhibited to his deposition for examination and copying, appellee again asserted that she had not waived her claim of privilege.

The case was tried on November 1, 1968. The fourth witness called by appellee was Dr. Paul Stroud, her family physician. He interpreted the x-rays taken by him as showing evidence of existing minor osteoarthritis of the neck. He also found evidence of muscle spasm in appellee's neck. Dr. Stroud compared the x-rays made by him in February of 1967 with those made by Dr. H. C. Barnett, employed by appellant to examine appellee. By this comparison he found increased and additional evidence of degenerative osteoarthritis of the spine of appellee. He stated that muscle spasm was usually associated with muscle trauma but supposed that one could have it with marked arthritis. He stated that appellee had had headaches both before and after her injury but that she had characterized them as being headaches of different types. He did not recall her having made any complaints of tenderness in the region of the neck or any limitation of motion of her neck prior to this injury. Dr. Stroud stated on direct examination that the symptoms of the appellee, in his opinion, could all be produced by an arthritic syndrome with possibly a little nervous tension or they could all be produced by trauma as a result of the collision. According to him, a myelogram by a neurologist would tend to indicate whether appellee's symptoms were attributable to the trauma or to arthritic changes. Dr. Stroud had no opinion whether the traumatic experience caused the existing symptoms of appellee either in whole or in part.

Immediately after the direct examination of Dr. Stroud was concluded, appellant moved for a continuance alleging that by reason of previous claims of privilege by the appellee, appellant had been deprived of any opportunity to obtain information as to the condition of appellee at and prior to the time of her alleged injuries and as to any disabilities which she may have suffered at or prior to the time of the collision. He also alleged he had been deprived of any opportunity to make a comparison of x-rays similar to that made by Dr. Stroud. It was asserted that appellant's counsel was unable to properly cross-examine the medical witnesses offered by appellee without expert advice and interpretation by a physician and that appellant could not be adequately prepared to defend without information as to appellee's medical history. Continuance was sought until such time as appellant had been afforded an opportunity to interrogate all physicians who had examined and treated appellee for conditions of which she complained, to avail himself of expert counsel as to the interpretation of various x-ray pictures offered and to obtain the testimony of expert witnesses in rebuttal of the findings and opinions of physicians offered as witnesses by appellee.

After the motion for continuance was denied, Dr. Stroud testified he had suggested that Mrs. Murphy see Dr. Robertson, a neurologist in Memphis, and ask him to check the condition of her neck because she was already under his care. Appellee later told him that she had not mentioned the matter to Dr. Robertson and he said, 'For God's sake do it.' He stated that the condition for which he suggested a myelogram is within the field of Dr. Robertson. Dr. John T. Gray, another physician called as a witness by appellee, testified that there was evidence appellee had a preexisting arthritic condition and that it is difficult to say whether the minimal arthritic condition she had would account for a loss of lordotic curve in her neck or whether it would be attributable to trauma. He detected a definite increase in arthritic changes and in calcification during the five months intervening between his examination of appellee and that of Dr. Barnett. He stated that one might conclude that whatever change occurred between these examinations was the result of progress of the arthritis and that arthritis is a disease. He did feel that the preexisting arthritis had been aggravated by the accident.

While appellee testified that she did not know she had any arthritis prior to the accident, she admitted that she had gone to Dr. Robertson and another Memphis physician for headaches. She stated that Dr. Robertson did not make any x-rays of her neck or spine after the accident although he had made some before the accident.

Appellant relies upon the court's denial of his motion for pretrial discovery of medical evidence, as well as upon the denial of his motion for continuance, for reversal. He strongly urges that we adopt the rule stated in Mathis v. Hilderbrand, 416 P.2d 8, 21 A.L.R.3d 907 (Alaska 1966) and State ex rel. McNutt v. Keet, Judge, 432 S.W.2d 597 (Mo.1968). In those cases it has been held that the filing and maintenance of an action to recover for physical injuries is, in itself, a waiver of the physician-patient privilege to the extent that attending physicians may be required to testify on pretrial deposition and that medical records and information must be disclosed on pretrial. Appellee contends that this very argument has been rejected by this court in Maryland Casualty Company v. Maloney, 119 Ark. 434, 178 S.W. 387. We agree with appellee in this argument. The Maloney case was cited with approval and followed in American Republic Life Insurance Company v. Edenfield, 228 Ark. 93, 306 S.W.2d 321. We do not feel that the discovery and pretrial statutes are in such conflict with the decisions in those cases that we should depart from the rule therein stated.

Appellant argues, however, that these statutes permit the trial court to require a plaintiff in an action such as this to state whether or not medical evidence will be offered and thereupon to permit discovery of such...