Carlton v. Superior Court

• Decision Date: 18 April 1968
• Citation: 67 Cal.Rptr. 568,261 Cal.App.2d 282
• Parties: John J. CARLTON, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Joseph H. CRAINE, Real Party in Interest. Civ. 32513.
• Court: California Court of Appeals Court of Appeals

Page 568

67 Cal.Rptr. 568

261 Cal.App.2d 282

John J. CARLTON, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Joseph H. CRAINE, Real Party in Interest.

Civ. 32513.

Court of Appeal, Second District, Division 1, California.

April 18, 1968.

Rehearing Denied May 15, 1968.

Hearing Denied June 11, 1968.

See 68 Cal.Rptr. 469.

Cushman & Grover and Melvin B. Grover, Los Angeles, for petitioner.

No appearance for respondent.

Harry Albert and Morris Singer, Long Beach, for real party in interest.

McCOY, Associate Justice. ^*

There is pending in the respondent court an action number SO C 13735, entitled Craine v. Carlton, wherein plaintiff seeks to recover damages for personal injuries sustained by him in an automobile accident on October 3, 1965. Plaintiff alleges among other things that he was a guest in defendant's automobile, that at the time of the accident defendant was 'under the influence of intoxicants' and that his 'faculties were substantially impaired thereby,' and that by reason of said intoxication and the impairment of defendant's faculties thereby, the automobile in which they were riding was caused to run off the road into a dirt embankment, thereby causing plaintiff's injuries. The allegations with reference to defendant's intoxication are denied.

The defendant, petitioner here, seeks a writ of prohibition restraining the respondent court from enforcing certain orders made in the pending action permitting the plaintiff to inspect certain hospital records relating to his alleged intoxicated condition. We have concluded that the court exceeded its jurisdiction in making those orders and that a peremptory writ should issue enjoining their enforcement.

It is admitted that immediately following the accident defendant was taken by ambulance to the Community Hospital in Long Beach for the treatment of his own injuries. During the course of his discovery in the pending action plaintiff made a motion pursuant to section 2031 of the Code of Civil Procedure for an order permitting him to inspect and copy the records of the hospital relating to the care and treatment of defendant on October 3, 1965, the date of the accident, including but not limited to doctors' notes, orders and comments, X-rays, and laboratory tests. Defendant opposed the motion on the ground that the records sought constituted confidential communications between his doctor and himself and thus were protected from discovery by the patient-physician privilege.

On October 17, 1967, the respondent court granted plaintiff's motion in part and made the following order: 'IT IS ORDERED that plaintiff may inspect, copy, and/or photograph records, reports and documents at Community Hospital, Long Beach, California, including but not limited to doctor's notes, orders and comments, x-rays, and laboratory tests related to and concerning the original reception of defendant, JOHN J. CARLTON, at said hospital on or about October 3, 1965, subject to and restricting the inspection to the intoxication or intoxicated condition of defendant, JOHN J. CARLTON, and including the portions of the aforesaid hospital records as made by persons other than medical doctors in connection with the original reception and any follow-up examinations regarding the intoxication of defendant, JOHN J. CARLTON, by any medical doctors on the same date of the original reception. IT IS FURTHER ORDERED that the aforesaid inspection shall include any observations and/or tests made by medical doctors as well as any observations by any individual who are (sic) not medical doctors and shall include any type of laboratory tests which may indicate intoxication. Inspection of any hospital records other than relating to the intoxication or intoxicated condition of defendant, JOHN J. CARLTON, as ordered above, shall not be allowed or permitted, nor shall inspection be permitted of any statements made by said defendant to doctors or nurses then under supervision of doctors.'

On October 30 the custodian of records of the hospital refused to open its records to plaintiff's inspection, notwithstanding the order just quoted. Thereupon plaintiff noticed a motion to be heard on November 2 for an order requiring inspection of the hospital records 'under that certain order made by this Court on October 17, 1967, for failure to produce said documents for inspection, copying and/or photographing on October 30, 1967.' Concurrently therewith plaintiff procured a subpoena duces tecum directed and served on the hospital pursuant to which its records were delivered to and sealed by the court pending the hearing of plaintiff's motion for enforcement of the order for inspection. Plaintiff's motion was heard on November 2, whereupon the following order was entered on the minutes of the court: 'The Court orders, that the Court having heretofore made an order in this matter under date of October 17th, 1967, and by reference included within the terms of the present order, and the documents now being before the Court after an attempted inspection at the hospital, pursuant to such order and such inspection being restricted by reason of the fact that it was then impossible for any one person present to delineate that which was within the meaning and intent of the order without invading the privilege otherwise existing in favor of the defendant. The documents (hospital records) now being here, the Court will on or before the 8th day (sic) of December, 1967, examine the medical file presented from the hospital, pursuant to a subpoena to bring them to this court, and will then separate those matters from the medical records--those matters which the Court deems relevant to the subject matter of this action, and not otherwise privileged within the meaning of the order heretofore made, and by the same token and by necessity will have then looked at tose (sic) matters which may be relevant to the cause, but to which the privilege may adhere, for the purpose of segregating them in camera without premitting (sic) counsel for the moving party to look at that privileged matter so determined by the Court in such inspection and will then, unless previously restrained by Writ of Prohibition of other proceedings, permit counsel for the plaintiff to inspect an (sic) copy those portions of the documents which the Court then deems to be within the meaning of the order heretofore made and heretofore referred to. It is understood that both orders, the previous order and the one today will be incorporated as the subject of the proposed action by the defendant. The Court is not saying to limit it to that--it is saying to incorporate them with whatever other documentations are necessary. On December 8th, 1967 at 11:00 A.M., the Court will carry out its proposed instruction unless previously restrained.'

Petitioner contends that, in making its order for inspection, the respondent court exceeded its jurisdiction, and that the court would exceed its jurisdiction if, without waiver of the patient-physician privilege by the petitioner, it examined and attempted to segregate the hospital records and determine unilaterally which portions of those records are within the privilege, and would also exceed its jurisdiction if it should take any other action to enforce the order for inspection.

Plaintiff's motion for an order permitting him to inspect the hospital records was made pursuant to section 2031 of the Code of Civil Procedure on the theory that the records were under defendant's control within the meaning of that section. So far as pertinent here, section 2031 reads: 'Upon motion of any party showing good cause therefor, * * * the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, * * * not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by subdivision (b) of Section 2016 of this code and which are in his possession, custody, or control; * * *.' Only two questions are raised by the petitioner, the one, whether the hospital records are privileged within the meaning of this section, and the other, whether the court has power to examine the hospital records in their entirety in camera and determine which parts of those records may be examined by plaintiff.

We note in passing that the records involved here are those of the hospital which is not a party to this proceeding and that it was not brought before the court at the hearing of the two motions referred to above. Since no question of procedure was raised in the trial court and none has been raised here, we do not consider or determine whether, in the circumstances of this case, a motion under section 2031 of the Code of Civil Procedure, addressed only to defendant, was the proper procedure to obtain inspection of the hospital records by the plaintiff. We assume for the purpose of this decision, but without deciding the point, that the procedure was proper. Nor do we here decide whether plaintiff made any showing of good cause for the order as required by section 2031, since that question was not raised in the trial court and has not been raised here. ¹

The Physician-Patient Privilege

Under section 994 of the Evidence Code, the patient who is the holder of the privilege, 'has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician if the privilege is claimed by: (a) The holder of the privilege; * * *.' As used in the article of the Evidence Code relating to this privilege, "physician' means a person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state or nation.' (Evid.Code, § 990.) " (P)atient' means a person who consults a physician or submits to an examination by a physician...