Enke v. Anderson, 14931

• Decision Date: 19 June 1987
• Docket Number: No. 14931,14931
• Citation: 733 S.W.2d 462
• Parties: David T. ENKE, Relator, v. The Honorable David P. ANDERSON, Judge of the Circuit Court, Division I, 31st Judicial Circuit, Respondent.
• Court: Missouri Court of Appeals

Page 462

733 S.W.2d 462

David T. ENKE, Relator, v. The Honorable David P. ANDERSON, Judge of the Circuit Court, Division I, 31st Judicial Circuit, Respondent.

No. 14931.

Missouri Court of Appeals,

Southern District,

Division Two.

June 19, 1987.

Robert T. Beezley, P.C., Springfield, for relator, David T. Enke.

Ronald R. Holliger, Kansas City, for Mo. Ass'n of Trial Attys.

G. Keith Phoenix, Timothy J. Phillips, Shepherd, Sandberg & Phoenix, P.C., St. Louis, for defendant Springfield Community Hosp.

FLANIGAN, Judge.

This is a prohibition proceeding, (Rule 97), ¹ in which the relator is David T. Enke and the respondent is the Honorable David P. Anderson, Judge of the Circuit Court of Greene County, Division I. The issue is whether Judge Anderson exceeded his jurisdiction in denying relator's request for production of an "incident report" prepared by an employee of Springfield Community Hospital, Inc. The report concerns an incident which occurred on October 19, 1984, involving a fall which relator sustained in the hospital while relator was a patient.

In the underlying action in the trial court, relator, as plaintiff, sought damages from defendant Springfield Community Hospital, Inc., for its alleged negligence in causing injuries sustained by relator in the October 19 incident. The petition alleged that the hospital, through its employees, was negligent in various respects in caring for and treating relator, including failing to monitor his condition on October 19 and in permitting him to walk in the hall, "unassisted and unattended," shortly following the administration of a drug.

Relator, as plaintiff in the trial court, discovered the existence of the incident report, through use of an interrogatory. He then filed a request for production of the incident report. The report consisted of two pages. Defendant hospital objected to the request "on the ground that it seeks work product and documents protected by the attorney-client privilege." Relator then filed a motion to compel production of the incident report.

Five days prior to the hearing on relator's motion, defendant hospital filed a memorandum in opposition to that motion, together with a blank "Incident Report Form," a 26-page manual entitled "Incident Reporting Process," and the affidavit of Dotty Landwehr dated July 21, 1986. Rule 55.28 permits the trial court, when a motion is based on facts not appearing of record, to hear the matter on affidavits presented by the respective parties.

The body of the uncontroverted affidavit of Dotty Landwehr reads:

"1. I am Associate Director of Nursing at Springfield Community Hospital, and as such, have personal knowledge of the facts hereinafter set forth.

2. That on October 19, 1984, I completed a two-page incident report which contained information I accumulated regarding David Enke's fall. This form was prepared by me to document the incident in the hospital, and to record information which may be necessary to defend any malpractice litigation.

3. That the manual entitled 'Incident Reporting Process' applies to incident reports prepared at Springfield Community Hospital, and applied to the incident report prepared concerning David Enke's fall.

4. That the Incident Report Form, attached as Exhibit C to defendant's Memorandum in Opposition, is the Incident Report Form used for David Enke's fall.

5. That the Incident Report form concerning David Enke's fall was forwarded to the hospital's insurer as indicated on the bottom of the form."

The manual entitled "Incident Reporting Process" included the following:

"In recent years there has been a dramatic increase in both the number and cost of insurance claims.... The Incident Report Form is a risk management tool that notifies the hospital of potential areas of loss. It enables the hospital to take corrective action--reducing losses and improving the quality of health care provided in the hospital. The Incident Report Form is also a reporting vehicle required by the insurance company. It notifies the insurance company of potential liability claims....

An injury is the most obvious result of an incident.... An incident may also result in the likelihood of a claim. A claim may be made in the absence of an injury.... The primary function of the Incident Report Form is notification. The two groups notified are: Your hospital--the insurance company.... The Incident Report Form can aid the various hospital committees and administration in identifying potential areas of risk and implementing measures to reduce and prevent future claims. The overall effect is an increase in the quality of patient care provided by the hospital....

The insurance company demands notification. The Incident Report Form enables the insurance company to review the circumstances surrounding the incident and determine the appropriate course of action. Legitimate claims can be settled fairly and expeditiously. Questionable claims can be investigated on a timely basis and either settled or a defense can be provided.... An Incident Report Form must be completed as soon as practicable after the occurrence is witnessed or discovered, and before you complete your work day.... Several benefits are derived from prompt reporting: Corrective action can be taken. The facts of the occurrence are fresh in the mind of the person who witnesses or discovers the incident. Many potential claims against the hospital can be eliminated or, at least, controlled."

The blank "Incident Report Form" carried a notation, "Not a part of medical records," immediately under its heading. At the bottom of the first page the form contained the instructions for the white (original) page to be sent to "Denver Insurance Company, c/o A.I.G. Risk Management, Inc., P.O. Box 1254, Wall Street Station, New York, N.Y. 10005." The "yellow" copy was to be sent to "Hospital Committee."

The trial court, after hearing oral arguments, sustained defendant hospital's objections to discovery of the incident report and denied relator's motion to compel its production. Relator then filed, in this court, a petition for writ of prohibition and this court issued its preliminary order in prohibition.

Relator contends that the incident report was discoverable and that it is "neither work product nor protected by the attorney-client privilege." Relator also contends that "incident reports which are made by hospitals ... are made in the routine and ordinary course of the hospital's business in regard to untoward incidents which occur. As such, the primary purpose for recording untoward events or occurrences concerning patients is to foster and promote better health care. The mere fact that an incident report can be used ... to report losses to risk management personnel or to insurance carriers does not clothe the report with the protection of work product or attorney-client privilege."

Respondent takes the position that relator improperly resorted to the remedy of prohibition because "relator is requesting affirmative relief [production of the incident report] as opposed to preventive relief. The writ of prohibition is preventive in nature, rather than corrective." In making this contention, respondent relies upon State ex rel. Amato v. Clifford, 689 S.W.2d 78, 81 (Mo.App.1985), where the court said "It [the writ of prohibition] issues to restrain the commission of a future act and not to undo one that has already been committed."

On the merits, respondent contends that the incident report "is work product and is protected by the attorney/client privilege," and that respondent did not abuse his discretion or exceed his jurisdiction in denying discovery of the incident report.

It may be conceded that mandamus, Rule 94, would have been relator's more appropriate remedy. St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 148[1, 2] (Mo.App.1984); State ex rel. Chandra v. Sprinkle, 678 S.W.2d 804 (Mo. banc 1984); State ex rel. J.E. Dunn Const. v. Sprinkle, 650 S.W.2d 707, 712 (Mo.App.1983). Mandamus will lie to review the action of the trial court in sustaining an objection to discovery of a matter which is properly discoverable. St. Louis Little Rock Hosp., Inc. v. Gaertner, supra, 682 S.W.2d at 148. On the other hand, prohibition is available to prevent a trial court from exceeding its jurisdiction in ordering discovery of privileged matters, State ex rel. Cain v. Barker, 540 S.W.2d 50, 51 (Mo. banc 1976), or in ordering production of work product ² when there has been no showing, as required by Rule 56.01(b)(3) "that a party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the material by other means." See May Dept. Stores Co. v. Ryan, 699 S.W.2d 134 (Mo.App.1985).

In St. Louis Little Rock Hospital, Inc. v. Gaertner, supra, 682 S.W.2d at 148 the court said:

"The distinction between mandamus and prohibition is at best blurred, at worst nonexistent, and the subject matter to which the two writs apply overlap to a great extent. See Tuchler, 'Discretionary Interlocutory Review in Missouri; Judicial Abuse of the Writ?' 40 Mo.L.Rev. 577, 586-87 (1975). Since prohibition would lie here, we see no reason to deny the applicability of mandamus."

In the instant case the controlling issue--the discoverability of the incident report--has been fully briefed by both sides and it would be a sacrifice of substance to form if this court were to hold, as it does not, that review of the trial court's ruling on that issue should be denied because relator resorted to prohibition rather than mandamus. This court will resolve the basic dispute on its merits.

Rule 56.01 contains "General Provisions Governing Discovery." Rule 56.01(b) deals with scope of discovery. Rule 56.01(b)(1) confines itself to the discovery of "any matter, not privileged." ³ (Emphasis added.) Rule 56.01(b)(3) deals with the discovery of...