Brandt v. Pelican, 74829

• Decision Date: 29 June 1993
• Docket Number: No. 74829,74829
• Parties: William E. BRANDT, Appellant, v. George PELICAN, M.D., Respondent.
• Court: Missouri Supreme Court

Page 658

856 S.W.2d 658

William E. BRANDT, Appellant, v. George PELICAN, M.D., Respondent.

No. 74829.

Supreme Court of Missouri En Banc.

June 29, 1993.

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

Stuart M. Haw, St. Louis, Jeffrey P. Ray, Kansas City, for respondent.

THOMAS, Judge.

Two Related Cases

On this date this Court is handing down two opinions arising out of the same facts and circumstances. The present case ("Brandt I ") is a medical malpractice case in which the jury returned a verdict in favor of the defendant. The plaintiff seeks a reversal and a new trial because of ex parte communications between the defendant and his representatives on the one hand and two of plaintiff's treating physicians on the other. In William E. Brandt v. Medical Associates et al., 856 S.W.2d 667 (Mo. banc 1993) ("Brandt II "), plaintiff sued George Pelican, the physician in Brandt I, and other parties to such ex parte communications for actual and punitive damages by reason of such ex parte communications. We will divide our discussion between the two opinions primarily on the basis of discussing in the respective opinions only the matters that are relevant to the relief sought by the plaintiff in the respective appeals. For a complete understanding of the impact of the physician-patient privilege in this factual setting it will be necessary for the reader to consider both opinions.

Facts of Medical Malpractice Case

In this present case, plaintiff appeals from a jury verdict in favor of the defendant in this medical malpractice action. The defendant, Dr. Pelican, treated plaintiff, William A. Brandt, for a painful abscess in his anal canal, which developed as a complication associated with Crohn's disease from which Mr. Brandt has suffered for most of his life. Crohn's disease is an inflammation of the bowel or digestive system, which can occur periodically and then go into remission. Mr. Brandt's Crohn's disease had been in complete remission for twenty years, until 1985. In December 1985, he noticed a sore spot near the anus or anal canal. He went to see his family physician, Dr. Leo Wacker, who prescribed Flagyl, a medication that Mr. Brandt took for five days as prescribed. Dr. Wacker did not tell Mr. Brandt about any potential side effects of the use of Flagyl and none developed. Mr. Brandt continued to see Dr. Wacker and a general surgeon, Dr. Gerald Behrens, but the abscess continued. On March 10, 1986, Dr. Behrens referred Mr. Brandt to the defendant, Dr. George Pelican, who specializes in gastroenterology. Dr. Pelican undertook to treat Mr. Brandt with the drug, Flagyl, on a long-term basis. His original prescription for Flagyl was renewed from time to time by telephone and continued for six months through and including September 1986.

One of the known side effects of Flagyl is peripheral neuropathy, an extremely painful condition caused by damage to the nerves in the extremities, such as the fingers, hands, toes, and feet. If peripheral neuropathy develops, it "usually" or "commonly" ceases when the patient discontinues taking Flagyl, but on occasion the painful condition continues indefinitely into the future even though Flagyl is discontinued; this condition is called "persistent peripheral neuropathy." Dr. Pelican did not inform plaintiff of the risk of peripheral neuropathy, nor did he caution him that if he experienced any abnormal feelings in his extremities he should stop taking Flagyl immediately and notify his doctors.

Mr. Brandt remained on the Flagyl for six months, through the end of September 1986. On September 12, 1986, he noticed that his handwriting had changed, that pencils were falling out of his hand, and that his signature seemed different. He also then suddenly realized that not only were his hands numb, but his feet were also numb and tingling. This was his first conscious awareness of symptoms of peripheral neuropathy. In retrospect, he also then realized that for several weeks before September 12, 1986, he had been developing other similar neurological symptoms.

In September of 1986 when Mr. Brandt became aware of his neurological symptoms, he returned to Dr. Wacker, who gave him a physical examination and told Mr. Brandt to stop taking the Flagyl immediately, explaining that the neurological symptoms were side effects of the drug. Although Mr. Brandt ceased taking Flagyl, those symptoms have continued, and it is now clear that he suffers from persistent peripheral neuropathy.

Beginning in September 1986, Dr. Ira Kodner, a surgeon, treated Mr. Brandt for the abscess. Dr. Kodner's treatment relied primarily on a surgically implanted seton drain, which drained the abscess and allowed the healing to occur. He used some medications, but not Flagyl. Healing was slow, but ultimately, in July of 1989, the abscess healed, and Mr. Brandt was released as a patient of Dr. Kodner.

In March of 1987, Dr. Gary Myers, a neurologist, first saw Mr. Brandt for diagnosis and treatment of the peripheral neuropathy. Dr. Myers saw plaintiff again in April of 1987 and then almost three years later in January and February of 1990.

Plaintiff brought this action against Dr. Pelican alleging three alternative grounds for recovery: first, Dr. Pelican's failure to inform of the risk of peripheral neuropathy; second, Dr. Pelican's failure to warn the plaintiff to be on the lookout for symptoms of peripheral neuropathy; and, third, Dr. Pelican's failure to properly monitor his patient while he was taking Flagyl.

On August 14, 1990, plaintiff took a videotaped deposition of Dr. Myers. Dr. Kodner's deposition was taken on November 30, 1990. Following these depositions, each of these treating physicians participated in ex parte conversations concerning Mr. Brandt's physical condition with Dr. Pelican and with Paul Myre, an attorney and employee of Medical Defense Associates, the malpractice liability insurer of Dr. Pelican. At trial, Dr. Kodner and Dr. Myers were not called as witnesses by the plaintiff, but they were called by the defendant. Shortly before trial, Dr. Myers agreed to serve as a paid expert witness for the defendant; his testimony described his treatment and diagnosis of Mr. Brandt but consisted primarily of expert opinions. The majority of Dr. Kodner's testimony described his three years of treatment of Mr. Brandt, but he also gave some expert opinions. The plaintiff claims that both Dr. Kodner and Dr. Myers changed their testimony from that given in their respective depositions as a result of the ex parte contacts and that plaintiff is therefore entitled to a new trial at which the changed testimony of Dr. Kodner and Dr. Myers will not be admitted.

Following the jury verdict in favor of defendant, the trial court held an evidentiary hearing regarding the ex parte communications with Dr. Kodner and Dr. Myers. As a result of that hearing, the trial court entered an order finding: (1) that there were no improper ex parte communications; and (2) even if there had been improper ex parte communications, there was no prejudice to the plaintiff created by the ex parte contacts.

Ex Parte Communications With Plaintiff's Treating Physicians

Plaintiff's motion is based upon this Court's decision in State ex rel. Woytus v. Ryan, 776 S.W.2d 389 (Mo. banc 1989), and upon McClelland v. Ozenberger, 805 S.W.2d 264 (Mo.App.1991). In Woytus, this Court held that we would not require the plaintiff to execute medical authorizations allowing defendants to have ex parte discussions with the plaintiff's treating physicians. In Woytus, we were not asked to rule, and we did not rule, on the issue of whether the medical privilege contained in section 491.060(5) prohibits such ex parte discussions. Woytus overruled State ex rel. Stufflebam v. Appelquist, 694 S.W.2d 882 (Mo.App.1985), in which the Court of Appeals, Southern District, required the plaintiff to execute a written authorization permitting the plaintiff's treating physician to engage in ex parte discussions with the defendant's lawyer if the physician was willing to do so.

In McClelland, the Court of Appeals, Western District, held that ex parte discussions between plaintiff's treating physician and defense counsel were improper. The court correctly observed that our opinion in Woytus "shows a judicial philosophy that discourages ex parte conversations with plaintiff's doctor." McClelland, 805 S.W.2d at 268. The court of appeals in McClelland remanded for an evidentiary hearing by the trial court to determine whether plaintiff was prejudiced by such contacts. The court of appeals granted a new trial unless the defendant proved no prejudice.

This case presents us with the issue of whether ex parte communications with the plaintiff's treating physician are prohibited during the discovery period of litigation and if so, what remedy is available to plaintiff. The plain and simple answer to this issue is found in the express language of section 491.060(5), RSMo Supp.1992, which reads as follows:

The following persons shall be incompetent to testify:

(5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist licensed under chapter 332, RSMo, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe and provide treatment for such patient as a physician, psychologist or dentist.

This statute only covers the disclosure of confidential medical information by testimony in court or by formal discovery such as interrogatories, depositions, or production of medical records, hereinafter referred to as the physician-patient testimonial privilege. The statute makes no reference to any duty of the physician to the patient not to disclose confidential medical information of the patient outside the courtroom such as in informal conversation, in interviews, or in correspondence. In Woytus we made the same incorrect...