Emmett v. Eastern Dispensary and Casualty Hospital

• Decision Date: 29 September 1967
• Docket Number: No. 20707.,20707.
• Citation: 396 F.2d 931
• Parties: William J. EMMETT, Administrator of the Estate of Joseph N. Emmett, Appellant, v. EASTERN DISPENSARY AND CASUALTY HOSPITAL et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

396 F.2d 931 (1967)

William J. EMMETT, Administrator of the Estate of Joseph N. Emmett, Appellant, v. EASTERN DISPENSARY AND CASUALTY HOSPITAL et al., Appellees.

No. 20707.

United States Court of Appeals District of Columbia Circuit.

Argued April 4, 1967.

Decided September 29, 1967.

Mr. Karl G. Feissner, Washington, D. C., with whom Mr. Erwin A. Alpern, Washington, D. C., was on the brief, for appellant.

Mr. John P. Arness, Washington, D. C., with whom Mr. Stephen S. Boynton, Washington, D. C., was on the brief, for appellee Eastern Dispensary & Casualty Hospital.

Mr. Walter J. Murphy, Washington, D. C., entered an appearance for appellee McNulty.

Before BASTIAN, Senior Circuit Judge, and WRIGHT and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Joseph N. Emmett, while a patient in the appellee hospital, died intestate on July 23, 1964. In this litigation, inaugurated April 15, 1966, our appellant, the decedent's son and administrator, charges that the hospital and its co-appellee, the decedent's attending physician, were negligent in the care and treatment of the decedent, thereby causing his death.¹ As dealt with in the proceedings under review, appellant's suit is for damages under both the Survival² and Wrongful Death³ Acts.

By our local law, actions for negligent personal injury may be brought within three years,⁴ but those for wrongful death must be commenced within one year following death.⁵ With appellant's case in the latter aspect thus jeopardized, he alleged that appellees bore a confidential relationship to the decedent and his family but nonetheless on numerous occasions "willfully and wrongfully withheld" the decedent's medical records from appellant's examination "for the purpose of preventing" him "from obtaining any information regarding the circumstances of" the death. Continuing, appellant stated that he was unable to get into court within the one-year period because of appellees' conduct in "concealing the facts so as to prevent the plaintiff from obtaining knowledge thereof and so as to prevent the plaintiff's decedent's family from obtaining knowledge of the wrongful acts of the defendants."

Appellees, prior to answering, moved for dismissal, and alternatively for summary judgment, on the ground, inter alia, that the death claim was fatally untimely. On that much of the case the District Court awarded summary judgment in appellees' favor,⁶ and this appeal followed.⁷ With appellant's allegations tendering factual issues which if material necessitated a trial,⁸ our task is to decide whether the circumstances charged could operate to toll the limitation period the Wrongful Death Act specifies. Concluding in the affirmative, we reverse and remand the case for further proceedings.

I

We first consider appellees' twin contentions that appellant was not entitled to inspect the decedent's medical records and that they were not obliged to make them available to him. Both the challenge to appellant's right and the asserted absence of duty rest upon the theory that the physician-patient privilege required appellees to preserve the confidentiality of the records against all save the decedent's "legal representative."⁹ Appellant had not been appointed his father's administrator when his several demands for examination were made, and appellees say that the preexisting parental relationship was not enough.

Even if we were persuaded that the privilege obtains in the situation at bar, we would find this argument unacceptable. Certainly a duly qualified personal representative, when there is one, is the decedent's "legal representative" for purposes of gathering information with a view to prosecuting a wrongful death claim,¹⁰ but this does not mean that the information may with impunity be withheld from the decedent's immediate family. The quoted term, we have said, "refers to the persons who are entitled to enforce the particular substantive right of the patient which is involved in a particular case."¹¹ Thus we have held that an intestate grantor's heirs seeking to annul a conveyance of realty on the ground of mental incapacity could, as against the grantee, waive the ancestor's privilege.¹² And while a suit for wrongful death must be brought by the decedent's personal representative,¹³ it is solely for the benefit of "the spouse and the next of kin of the deceased person."¹⁴ In our view, a son and only child has so vital an identification with any cause of action potentially arising upon his father's negligently caused demise as would enable him to waive the privilege as to pertinent medical data when there is no personal representative to act in his behalf.

We think, too, that the statute defining the physician-patient privilege is inapposite here. In terms it operates only "in the courts of the District of Columbia,"¹⁵ and this lawsuit had not taken shape when appellant asked that the records be made accessible. To his endeavor neither the letter nor the spirit of the statute had application.¹⁶

The responsibilities of physicians and hospitals to protect their patients' medical facts from extrajudicial exposure spring from the confidential nature of the relationship. We find in the fiducial qualities of that relationship the physician's duty to reveal to the patient that which in his best interests it is important that he should know.¹⁷ And we would consider anomalous in this age any rule that would immunize from a similar obligation a hospital which is the repository of such knowledge.¹⁸

This duty of disclosure, we hold, extends after the patient's death to his next of kin.¹⁹ To be sure, medical professionals can and should vigilantly safeguard the patient's secrets from unauthorized scrutiny.²⁰ They may, prudently and conscientiously, take such precautions, including suitable identification, as may be necessary to enable determination of the propriety of a requested revelation, and we would consider qualifiedly privileged any divulgence reasonably made to one apparently entitled to it.²¹ But we could not justify a refusal to yield the information to a qualified recipient, whether or not it stems from the dictates of self-protection.

II

While it is well settled that fraudulent concealment of the existence of a cause of action tolls the running of a conventional statute of limitation,²² its effect upon the type of time proscription contained in the Wrongful Death Act is not so clear. We have had occasion to note, although as to this legislation not yet to follow,

"* * * a line of opposing authority which takes the view that as to rights of action of a purely statutory nature, such as the so-called wrongful death statutes, the time thereby prescribed for filing suit operates as a limitation of the liability itself as created by the statute, and not of the remedy alone. It is deemed to be a condition attached to the right to sue. As such, time has been made of the essence of the right, which is lost if the time is disregarded. The liability and the remedy being created by the same statute, limitation of the remedy must be treated as limitation of the right."²³

And one finds a number of cases holding, adherently to this analysis, that the period within which a wrongful death action must be brought is not extended by concealment of the facts which give rise to it.²⁴

Many courts, however, have dissented from the proposition that a limitation incorporated into a death action statute cannot on an appropriate occasion be suspended.²⁵ A few have specifically held that fraudulent concealment of information the moving party needs in order to determine whether there is a litigable dispute is just such an occasion.²⁶ This position we accept in lieu of a counterpoint so conceptualistic as to obscure both logic and fairness. As we have pointed out:

"It has often been said that a primary purpose of statutes of limitations in general has been the prevention of fraud. It is freely conceded by appellee here that fraud will toll the running of the so-called remedial statute of limitations. We cannot see a distinction and a difference, so clear and so real, between the two classes of statutes of limitations — the remedial and the substantive — as to justify the courts in fully giving effect to fraud in tolling the statute in one type (remedial) and then flatly denying that effect to fraud in the other type (substantive). The ancient maxim that no one should profit by his own conscious wrong is too deeply imbedded in the framework of our law to be set aside by a legalistic distinction between the closely related types of statutes of limitations."²⁷

Moreover, in Holmberg v. Armbrecht²⁸ the Supreme Court declared that the doctrine of tolling by fraudulent concealment "is read into every federal statute of limitation,"²⁹ and we do not feel at liberty to disregard so explicit and unqualified a statement.³⁰ Instead, we take it as an admonition to be observed in all instances, irrespective of the nature of the statute as substantive or procedural,³¹ unless a contrary congressional purpose is evident.³²

It is clear that when summary judgment was granted there was a genuine factual issue on the resolution of which depended the efficacy of the statutory limitation to bar the death claim. Surely proof of appellant's allegations that appellees' refusal to permit him to canvass the records was evilly motivated, and that it prevented timely institution of suit, would meet the highest standards the law could exact. And with the fiduciary relationship and concomitant obligation of disclosure we find here, it would suffice to show an unprivileged refusal to release properly requested information so material in character that knowledge of a basis for, or intelligent prosecution of, the cause of action was precluded.³³ Of course, we venture no prediction as to the capabilities of appellant's evidence to bring success to his litigious efforts. It is enough that appellant, by appropriate...