Branch v. Wilkinson

• Decision Date: 15 June 1977
• Docket Number: No. 40893,40893
• Citation: 198 Neb. 649,256 N.W.2d 307
• Court: Nebraska Supreme Court
• Parties: Dolores J. BRANCH, Administratrix of the Estate of Hubert L. Branch, Deceased, Appellant, v. John S. WILKINSON, Appellee.

Page 307

256 N.W.2d 307

198 Neb. 649

Dolores J. BRANCH, Administratrix of the Estate of Hubert L. Branch, Deceased, Appellant, v. John S. WILKINSON, Appellee.

No. 40893.

Supreme Court of Nebraska.

June 15, 1977.

Syllabus by the Court

1. The physician-patient privilege protects not only statements made by the patient to the physician, but also facts obtained by the physician by observation or examination.

2. The party seeking to exclude evidence on the ground of privilege has the burden of proof to show that the information was obtained by the physician in his professional capacity during his relationship with the patient.

3. To be privileged, information obtained during the existence of a physician-patient relationship must be necessary to enable the physician to properly discharge his duties. Where the information is not obtained for this purpose, it is not privileged.

4. A blood sample secured pursuant to an implied consent statute is not information within the purposes of a physician-patient privilege statute because the sample is taken only for blood alcohol tests and not for diagnosis or treatment of the patient.

5. The provisions of the implied consent statutes are applicable only to prosecutions for offenses arising out of acts alleged to have been committed while the person was driving or was in the actual physical control of a motor vehicle while under the influence of alcoholic liquor.

6. A waiver, according to the generally accepted definition, is the voluntary and intentional relinquishment of a known right, claim, or privilege.

7. Where there is no evidence presented as to the effect of intoxicants on the part of the party involved, it is not proper to submit that issue directly to the jury.

8. Gross negligence within the meaning of the motor vehicle guest statute means gross and excessive negligence or negligence in a very high degree; the absence of slight care in the performance of duty; an entire failure to exercise care; or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the safety of others. Negligence that is purely momentary in nature generally does not constitute gross negligence.

9. The burden of proving a cause of action is not sustained by evidence from which the jury can arrive at its conclusion only by mere guess or conjecture. Negligence is never presumed.

G. J. Beal, of Beal & Jensen, Ogallala, for appellant.

Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

PAUL W. WHITE, Chief Justice.

This is a wrongful death action brought by the plaintiff, Dolores J. Branch, Administratrix of the Estate of Hubert L. Branch, deceased. The plaintiff's decedent was killed as a result of an automobile accident in Morrill County, Nebraska, on March 9, 1974. The plaintiff's decedent was a passenger in the motor vehicle. The defendant owned and operated the vehicle. In her petition, the plaintiff alleged negligence, including speeding and intoxication, and sought special and general damages, including damages for conscious pain and suffering by her decedent.

The defendant answered with a general denial and filed a motion to suppress evidence derived from blood samples taken from the defendant after the accident. The District Court sustained the defendant's motion to suppress evidence of the blood alcohol test of the defendant on the theory that the test was within the physician-patient privilege. The defendant then filed an amended answer denying that he was intoxicated at the time of the accident and alleging that the plaintiff's decedent assumed the risk, along with other specifications of negligence on the decedent's part, which, in essence, were failure to warn of approaching danger and failure to have seat belt in place and fastened.

The case was tried to a jury. At the close of the plaintiff's case, the defendant moved for a directed verdict. The District Court sustained this motion. The plaintiff filed a motion for a new trial, which was overruled, and now appeals. We affirm the judgment of the District Court.

The plaintiff's primary contention on appeal concerns the admissibility of the results of a blood alcohol test conducted on a blood sample taken from the defendant shortly after he had been brought to the hospital. The results of this test showed an alcohol content of .011 percent in the defendant's blood at the time the sample was withdrawn, approximately 21/2 hours after the accident. The District Court held that the results of the blood alcohol test were inadmissible due to the physician-patient privilege. The plaintiff argues that the blood alcohol test results are not privileged and that, if they are, the privilege was waived by the defendant.

The record reveals the following facts relevant to the taking of a blood sample from the defendant. The accident took place at approximately 3:12 a. m. on March 9, 1974. At 4:11 a. m. Officer Harris of the State Patrol arrived at the accident scene. At 4:50 a. m. ambulances arrived at the accident scene. Officer Harris accompanied the ambulances to the Bridgeport hospital, where they arrived at approximately 5:30 a. m. Branch was taken to the emergency room and attended to by Dr. Blackstone. Wilkinson was taken to the X-ray room and attended to by Dr. Post. Wilkinson was unconscious when brought to the hospital. At trial Dr. Post testified: "I made an order for the usual profile or battery of tests to evaluate the general blood condition." Technologist Hadden, on call at the time, stated in a deposition that she was directed by Dr. Post to draw a blood sample from both Wilkinson and Branch, and that after she drew the blood sample from Wilkinson, she placed it in the refrigerator. The blood sample of Wilkinson, which was tested for alcohol content was labeled, "John Wilkinson, Oshkosh, 5:35 a. m. 3-9-74, by B. Hadden." After Dr. Post had been with Wilkinson for 15 or 20 minutes, he was interrupted by Nurse Bateman concerning Branch. He proceeded to Branch, who died shortly thereafter at 6:07 a. m.

In her deposition, Mrs. Hadden stated that the blood alcohol sample from Wilkinson was given to the State Patrol. She stated: "This was the order from Dr. Post that if they requested it it was to be given them. They did request it the following morning." She stated that she believed Officer Hansen of the State Patrol, who arrived at the hospital shortly after the ambulances arrived, requested the sample. She stated that she did not know whether Officer Hansen spoke previously to Dr. Post concerning the sample or not; that he asked her for the blood sample; and that she gave it to him.

Roger Lott, county attorney of Morrill County at the time, testified that he arrived at the hospital shortly after Branch had died. He stated that the possibility of drinking was discussed with Officers Harris and Hansen before the three left at 7:39 a. m. to inspect the accident scene. Lott testified that he ascertained that a blood alcohol sample had been taken from Wilkinson and that he had a conversation with one of the State Patrol officers concerning the taking of the blood alcohol sample from Wilkinson. He stated that he did not specifically request the doctor to take the sample but knew that a sample had been taken. He testified that he had a discussion with Officers Harris and Hansen concerning the policy with respect to the blood alcohol sample and was told that it was the policy of the State Patrol to take a blood test on any state patrolman who was involved in either a personal injury or fatality accident. Lott stated that he had no personal knowledge that the blood sample had been obtained by the State Patrol, but later the State Patrol provided him with the results of the test. He stated that he was told that Officer Hansen took the test to Scottsbluff and that it was his understanding the test would be obtained from the hospital that morning and taken to Scottsbluff.

In Dr. Post's deposition, the following exchange took place:

"Q. In the course of the treatment of your patient, would you, yourself, have any reason or need or desire for a blood alcohol test of the patient?

"A. Yes. It is my custom in patients that suffer any kind of head injury, for whatever reason, I ask for a blood alcohol if there is any evidence whatsoever that it's needed. Also, we test for diabetes. * * *

"Q. Well, the question was whether or not you needed the blood alcohol test to treat the patient at that particular time?

"A. On entry and shortly thereafter?

"Q. Or thereafter.

"A. I believe the knowledge of blood alcohol would have a pertinent and important place in the treatment of this patient.

"Q. As it developed, though, whether or not Mr. Wilkinson did have some alcohol content in his blood was not a critical factor?

"A. This is true * * *."

In an affidavit filed by the defendant in support of his motion to suppress, Dr. Post stated that the blood alcohol test on Wilkinson was performed as a normal diagnostic procedure for an unconscious patient; that no law enforcement official requested that a blood alcohol test be taken from Wilkinson; that sometime after the test was taken he had a discussion with Roger Lott, the county attorney, concerning whether such a test had been taken; that he informed Lott that such a test had been taken; that it was available to him or the State Patrol; and that Lott told him he wanted the test.

The following picture is thus presented: The blood sample was withdrawn from Wilkinson at 5:30 a. m., within minutes after the ambulances arrived at the hospital. Dr. Post testified that he ordered that the blood sample be taken from Wilkinson. Officer Hansen did not arrive at the hospital until 5:42 a. m., and the county attorney arrived after Branch had died. Thus, at the time the blood sample was taken, Officer Harris was the only law...