Brandt v. Medical Defense Associates

• Decision Date: 29 June 1993
• Docket Number: No. 74873,74873
• Citation: 856 S.W.2d 667
• Parties: William E. BRANDT, Plaintiff-Appellant, v. MEDICAL DEFENSE ASSOCIATES, a Corporation, Ira J. Kodner, M.D., Gary H. Myers, M.D., George Pelican, M.D., Defendants-Respondents,
• Court: Missouri Supreme Court

Page 667

856 S.W.2d 667

William E. BRANDT, Plaintiff-Appellant, v. MEDICAL DEFENSE ASSOCIATES, a Corporation, Ira J. Kodner,

M.D., Gary H. Myers, M.D., George Pelican, M.D.,

Defendants-Respondents,

No. 74873.

Supreme Court of Missouri,

En Banc.

June 29, 1993.

David M. Duree, St. Louis, for plaintiff-appellant.

Peter F. Spataro, Joseph M. Kortenhof, St. Louis, and Gary P. Paul, Clayton, for defendants-respondents.

Richard S. Brownlee, III and Mary D. Winter, Jefferson City, for amicus, MSMA.

B.H. Clampett and Michael J. Cordonnier, Springfield, for amicus, RCA Mut.

Morris E. Stokes, Kevin F. O'Malley and Mary L. Reitz, St. Louis, for amicus, MMIC.

Ronald R. McMillin, Lori J. Levine and Gerald M. Sill, Jefferson City, for amicus, MHA.

THOMAS, Judge.

Background and Facts

This case ("Brandt II ") arises out of the medical malpractice action entitled Brandt v. Pelican, 856 S.W.2d 658 (Mo. banc 1993) ("Brandt I "). In Brandt I, Plaintiff William E. Brandt sued Defendant George Pelican, his primary treating physician, for failing to warn concerning persistent peripheral neuropathy, which plaintiff claimed he incurred as a side effect of the drug Flagyl prescribed by defendant for plaintiff's anal Crohn's disease. In Brandt I, the jury returned a verdict in favor of the defendant.

Dr. Ira Kodner treated the plaintiff's anal Crohn's disease successfully after plaintiff's treatment by Dr. Pelican was terminated once the peripheral neuropathy condition became apparent and was diagnosed. Dr. Gary Myers treated the plaintiff for the peripheral neuropathy.

After the medical issues were joined and the depositions of Dr. Kodner and Dr. Myers had been taken in Brandt I, they each participated in ex parte discussions with the defendant and Paul Myre, an attorney for defendant's medical malpractice insurer, concerning plaintiff's condition and the medical issues in Brandt I. At the trial of Brandt I, Dr. Kodner and Dr. Myers were not called as witnesses by the plaintiff, but both were called to testify by the defendant. Both testified concerning their treatment of plaintiff's condition, and both also rendered certain expert opinions regarding plaintiff's condition and other medical issues in the lawsuit.

Following the trial of Brandt I, plaintiff filed the present action seeking actual and punitive damages based on civil conspiracy to breach a fiduciary duty (Count I) and civil conspiracy based on invasion of privacy (Count II) against Dr. Kodner, Dr. Myers, Dr. Pelican, and Medical Defense Associates, the medical malpractice liability insurer for Dr. Pelican in Brandt I.

Each of the defendants filed a motion to dismiss plaintiff's petition on various grounds, including that plaintiff's petition fails to state a claim or cause of action for which relief can be granted. The trial court granted the motions of all defendants. The Court of Appeals, Eastern District, reversed the trial court and held that a cause of action was stated against Dr. Kodner and Dr. Myers for breach of fiduciary duty when a physician takes part in an unauthorized ex parte discussion with the patient's adversary in litigation. The court of appeals also held that plaintiff's petition stated a cause of action against Dr. Pelican and Missouri Defense Associates for aiding and abetting Dr. Kodner and Dr. Myers in the commission of a tort, i.e., breach of fiduciary duty. We accepted transfer of Brandt I, and the court of appeals transferred Brandt II to us following the issuance of their opinion.

Brandt I

In Brandt I, we held that section 491.060(5) creates only a testimonial privilege. The testimonial privilege as set forth in section 491.060(5) relates to the disclosure of confidential medical information by testimony in court or by formal discovery. We further held that there is nothing in the statute or the common law that would entitle plaintiff to a retrial in the underlying medical malpractice case because of the ex parte contacts between defendant's attorney and plaintiff's treating physicians. As we pointed out in Brandt I, our courts have historically treated this duty of confidentiality as arising under section 491.060(5), and we have referred to it along with the testimonial privilege generically as the physician-patient privilege. To distinguish this obligation of confidentiality, which we have now determined is not grounded in the statute, we will refer to this obligation as the physician's fiduciary duty of confidentiality.

The Physician's Fiduciary Duty of Confidentiality

The language in section 491.060(5) only covers the testimonial privilege, and our courts have recognized that at common law there was no physician-patient privilege. Epstein v. Pennsylvania R. Co., 250 Mo. 1, 156 S.W. 699, 705 (1913); Klinge v. Lutheran Medical Center of St. Louis, 518 S.W.2d 157, 164 (Mo.App.1975). This does not necessarily mean that there is no protection in our law to prevent the physician from disclosing medical information of the patient under non-testimonial circumstances. If this duty of confidentiality is not grounded in either the common law or section 491.060(5), then what is its basis? Other courts that have addressed this same problem have found various grounds for legal protection. Courts in other jurisdictions have used "four major theories upon which recovery for wrongful disclosure by a physician may be based.... (1) breach of the [fiduciary] duty of confidentiality; (2) invasion of the right to privacy; (3) violation of statutes concerning physician conduct; and (4) breach of implied contract." Lonette E. Lamb, Note, To Tell or Not to Tell: Physician's Liability for Disclosure of Confidential Information about a Patient, 13 Cumb.L.Rev. 617 (1983).

One federal district court, when faced with finding a theory to support the physician's fiduciary duty of confidentiality stated: "Modern public policy, not the archaic whims of the common law, demands that doctors obey their implied promise of secrecy." Hammonds v. Aetna Casualty & Surety Co., 243 F.Supp. 793, 796 (N.D.Ohio 1965). Likewise, the common law and the public policy of this state are not stagnant but are evolutionary. Furthermore, the courts of Missouri have recognized that "[a] physician occupies a position of trust and confidence as regards his patient--a fiduciary position." Moore v. Webb, 345 S.W.2d 239, 243 (Mo.App.1961); State ex rel. Woytus v. Ryan, 776 S.W.2d 389 (Mo.banc 1989); State ex rel. McCloud v. Seier, 567 S.W.2d 127, 128 (Mo. banc 1978).

The legislature has implicitly recognized the existence of a physician's fiduciary duty of confidentiality. See § 578.353, RSMo 1986 (a physician is immune from civil liability when making report that a patient was treated for a gunshot wound); § 334.265, RSMo Supp.1992 (notwithstanding the rules of confidentiality, a physician who treats a patient who appears to be intoxicated for injuries sustained in an automobile accident may make a report to the highway patrol); § 192.067, RSMo Supp.1992 (a physician may give the department of health information concerning a patient for epidemiological studies to safeguard the health of citizens of Missouri and will not be held either civilly or criminally liable for divulging confidential information); § 191.737, RSMo Supp.1992 (notwithstanding the physician-patient privilege, a physician may report to the department of health children who may have been exposed to a controlled substance and is immune from civil liability); § 188.070, RSMo 1986 (a physician who does not maintain the confidentiality of records pertaining to abortions is guilty of a misdemeanor and is to be punished as required by law); § 191.743, RSMo Supp.1992 (if a physician receives consent from a high-risk pregnant woman to make a report to the department of health, this consent is deemed a waiver of the physician-patient privilege and the physician has immunity from civil liability); § 191.656, RSMo Supp.1992 (a patient's HIV infection status or the results of HIV testing shall be kept strictly confidential by a physician unless there is an explicit exception provided in this statute. If an exception applies, the physician will not be civilly liable). By providing specific exceptions to the physician's fiduciary duty of confidentiality, these statutes implicitly acknowledge that, in the absence of such an exemption, there would be a breach of this duty, which, in turn, constitutes a recognition by the legislature of the existence of the physician's fiduciary duty of confidentiality.

We believe a physician has a fiduciary duty of confidentiality not to disclose any medical information received in connection with his treatment of the patient. This duty arises out of a fiduciary relationship that exists between the physician and the patient. If such information is disclosed under circumstances where this duty of confidentiality has not been waived, the patient has a cause of action for damages in tort against the physician. In addition to a physician's legal fiduciary duty, a physician also has a separate ethical duty to maintain the confidentiality of information received from a patient. ¹ While the ethical principles may evidence public policy that courts may consider in framing the specific limits of the legal duty of confidentiality, this legal duty is to be distinguished from the ethical duty. The civil action for damages in tort is the sanction that puts teeth into the physician's duty of confidentiality. Pursuant to our holding in Brandt I, a breach of the physician's duty of confidentiality does not constitute error in or affect the underlying personal injury or malpractice case, because the language of section 491.060(5) covers only the testimonial privilege.

Of course, the physician's testimonial privilege and the fiduciary duty of confidentiality are not absolute; they must give way if there is a stronger countervailing societal interest. One such countervailing societal interest arises when a...