Cua v. Morrison

• Decision Date: 29 December 1993
• Docket Number: No. 29A05-9212-CV-456,29A05-9212-CV-456
• Citation: 626 N.E.2d 581
• Parties: Rosita L. CUA, Appellant-Plaintiff, v. Paul W. MORRISON, Stephen M. Paterson, and State Farm Mutual Automobile Insurance Company, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 581

626 N.E.2d 581

62 USLW 2439

Rosita L. CUA, Appellant-Plaintiff, v. Paul W. MORRISON, Stephen M. Paterson, and State Farm Mutual

Automobile Insurance Company, Appellees-Defendants.

No. 29A05-9212-CV-456.

Court of Appeals of Indiana,

Second District.

Dec. 29, 1993.

C. Dennis Wegner, Jeffrey K. Orr, C. Dennis Wegner & Associates, Indianapolis, for appellant-plaintiff.

Robert C. Riddell, Kevin C. Schiferl, Locke Reynolds Boyd & Weisell, Indianapolis, for appellee-defendant Stephen M. Paterson.

SULLIVAN, Judge.

Rosita L. Cua ("Cua") and Stephen M. Paterson ("Paterson") jointly submit this permissive interlocutory appeal from the trial court's Order requiring Cua, the plaintiff in a personal injury tort claim, to execute a letter authorizing defense counsel to conduct informal, ex parte interviews with her health-care providers.

Pursuant to Appellate Rule 4(B)(6), the trial court certified the issue to us as follows:

"Whether the Trial Court abused its discretion in entering an Order requiring plaintiff to sign a release allowing defense counsel to engage in ex parte communication with plaintiff's medical care providers." Joint Petition To Entertain Jurisdiction of Permissive Interlocutory Appeal at 2. ¹

The case is one of first impression in Indiana and we note that courts across the country are sharply divided upon the issue.

We hold that the trial judge abused her discretion in ordering discovery to be conducted in this manner and that ex parte interviews with a party-patient's health-care providers by opponent's counsel impermissibly compromises the physician-patient privilege. We further hold that prohibiting such ex parte interviews is not unfair to the opposing party.

The record reveals that on February 22, 1990, Cua and Paul Morrison ("Morrison") were involved in an automobile accident. A few weeks later, Cua was involved in another automobile accident with Paterson. Cua filed suit against both Morrison and Paterson claiming personal injury as a result of the accidents.

During the course of discovery, Paterson wrote a letter to Cua acknowledging receipt of reports from two of Cua's treating physicians and requesting that Cua execute a release authorizing defense counsel to discuss the reports directly with those physicians. Paterson also requested that Cua execute a general release authorizing interviews with any of Cua's other health-care providers. ² Cua's attorney agreed to allow formal depositions of the physicians but refused to allow informal interviews unless Plaintiff's counsel was present. Paterson then filed a motion with the trial court to compel Cua to sign the releases and to compel her counsel to execute a letter authorizing her health-care providers to confer with defense counsel. The trial court granted the motion.

Indiana has created a physician-patient privilege by statute which renders physicians incompetent to testify regarding matters communicated to them by patients in the course of diagnosis or treatment. ³ However, when a patient places her mental or physical condition at issue in a law suit, she has impliedly waived the physician-patient privilege to that extent. Collins v. Bair (1971) 256 Ind. 230, 268 N.E.2d 95, 101; Canfield v. Sandock (1990) Ind., 563 N.E.2d 526. The privilege is only waived as to "those matters causally and historically related to the condition put in issue and which have a direct medical relevance to the claim, counterclaim or defense made." (Emphasis in original.) Collins, supra, 268 N.E.2d at 101. Medical information not related to the claim retains its privileged status and is not discoverable. Id.

We note at the outset that this appeal is not about what information Paterson may discover, rather, it is about how Paterson may discover it. Several courts have characterized this issue as a balance between seeking the truth and protecting a privilege. ⁴ We do not. "[I]n not one instance has a court found that ex parte conferences were necessary in order to permit defense counsel to obtain information that they were unable to obtain through the regular channels of discovery." (Emphasis in original.) Petrillo v. Syntex Laboratories, Inc. (1986) 1st Dist., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 176, 499 N.E.2d 952, 956, cert. denied, (1987) 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738.

I. Standard of Review

The grant or denial of motions for discovery is within the discretion of the trial court and will be overturned only for abuse of discretion. Canfield, supra, 563 N.E.2d at 530. We may find an abuse of discretion only if the order is unreasonable in light of all attendant circumstances and is prejudicial to Cua's rights. Emmons v. State (1986) Ind., 492 N.E.2d 303.

Paterson contends that in Collins our Supreme Court recognized an almost boundless latitude on the part of the trial judge to authorize discovery where a patient has put her medical condition at issue. We disagree. In Collins, our Supreme Court stated that the trial court must closely supervise discovery in this area and "should not lightly consider a party patient's right to invoke the physician-patient privilege as to any [unrelated] matters ... [l]est the physician-patient privilege become nothing more than a legal anachronism...." Collins, supra, 256 Ind. at 242, 268 N.E.2d at 101. The Court expressed its concern that the limited waiver of the privilege not be used to allow defense counsel to conduct a "fishing expedition" into unrelated matters. Id. In Canfield v. Sandock, supra, our Court stated "Full and unlimited disclosure ... could reveal, for example, that the plaintiff had been tested for or diagnosed as having AIDS or some other sexually transmitted disease or that a female plaintiff had undergone an abortion procedure.... [T]he discovery process which would authorize the disclosure of unrelated and potentially embarrassing or ruinous information could only undermine the purpose of the physician-patient privilege." 563 N.E.2d at 530.

We hold that the trial judge abused her discretion because the method of discovery ordered poses a substantial threat that privileged information would be disclosed and that such information is not required for fair and efficient trial preparation.

II. Danger of Disclosure

Paterson argues that the court's order adequately protects Cua's privileged medical information because the authorization is expressly limited to medical conditions claimed by or in connection with the automobile accident involving Paterson. This argument misses the mark. The order makes Paterson's attorney and Cua's physicians the sole arbiters of what conditions are relevant to Cua's claim.

The supervision of what is discoverable cannot be delegated to a physician and a defendant's attorney or representatives. ⁵ See Roosevelt Hotel Ltd. Partnership v. Sweeney, (1986) Iowa, 394 N.W.2d 353, 357. A physician is not trained in deciding what is or is not legally relevant. A patient and her opponent's counsel are likely to disagree upon what information has a direct medical relevance to the claim. Without attributing improper motives to the defense bar, the very nature of the adversary process makes it unlikely that a defendant's attorney will adequately safeguard the interests of the plaintiff during an ex parte interview. The defendant's attorney is obligated to discover evidence that is believed to be relevant in order to fulfill the duty to the client, even if the relevance of the solicited information is contested by the plaintiff. Further, because a defendant's attorney would likely be unaware that the answer to a question requires the disclosure of privileged information, it would be impossible, as a practical matter, for the defense counsel to protect this as yet unuttered statement.

Cua's argument that the order does nothing to ensure that Paterson's inquiry will be limited to relevant conditions is convincing. The physician-patient privilege may only be waived by Cua. See Canfield, supra, 563 N.E.2d at 529. However, she would have no opportunity to exercise the privilege if she or her counsel could not be present during the interview. To take this concept to the extreme, it would be impossible for a patient to seek protection from the court, if necessary, where the patient has no idea that an ex parte interview has taken or is about to take place.

III. Fair Trial Preparation

Paterson argues that ex parte interviews of the opponent's physician are necessary for fair trial preparation. Paterson first contends that allowing Cua's counsel to be present during an informal interview with her health-care providers would allow Cua access to his counsel's work product. This argument is unpersuasive. Work product protects an attorney's notes and memoranda reflecting the attorney's theories and mental impressions about the case. Hickman v. Taylor (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Ind.Trial Rule 26(B)(3). As stated in Petrillo v. Syntex Laboratories, Inc., supra, "A plaintiff's attorney, by merely being present at a treating physician's deposition, 'monitors' nothing more than the questions asked and the answers given." 102 Ill.Dec. at 183, 499 N.E.2d at 963. If counsel's questions were protected work product, all discovery including interrogatories and requests for admissions, would be impermissible.

Next, Paterson argues that allowing Cua unfettered access to her health-care providers while restricting his counsel's access will give Cua an "obviously unfair advantage." ⁶ Brief of Appellee at 14. He states that because of restricted access, he will be limited to taking a deposition or foregoing knowledge of crucial evidence. We do not agree. There are several other methods of discovery that are not as expensive and are effective, including informal interviews in the presence of plaintiff's counsel. Paterson has not pointed to any information which he could obtain from an ex parte informal interview which he could not obtain by other means.

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