Ex parte Rudder

• Decision Date: 16 January 1987
• Parties: 13 Media L. Rep. 2289 Ex parte Dr. William H. RUDDER. (Re Dr. William H. RUDDER v. UNIVERSAL COMMUNICATIONS CORPORATION, etc., et al.) 85-871.
• Court: Alabama Supreme Court

Page 411

507 So.2d 411

13 Media L. Rep. 2289

Ex parte Dr. William H. RUDDER (Re Dr. William H. RUDDER v. UNIVERSAL COMMUNICATIONS CORPORATION, etc., et al.)

85-871.

Supreme Court of Alabama.

Jan. 16, 1987.

Rehearing Denied May 8, 1987.

Joseph J. Boswell, Mobile, for petitioner.

Carroll H. Sullivan and John C. Dobbs of Hume & Sullivan, Mobile, for respondents.

SHORES, Justice.

This is a petition for writ of mandamus or, in the alternative, petition for writ of prohibition. The petition arises in the context of a defamation case in which Dr. William H. Rudder sued Universal Communications Corporation (owners of WALA-TV in Mobile) and Glenda Webb (an investigative reporter for WALA). Dr. Rudder, a Mobile psychiatrist, filed a libel and invasion of privacy lawsuit against WALA and Webb, based upon television broadcasts on February 13 and 14, 1984, that dealt with the subject of abusive prescriptive drug practices. Part of those broadcasts included reports on an investigation of Dr. Rudder and another Mobile physician, Dr. Socrates Rumpanos, by the Alabama State Board of Medical Examiners relative to their prescribing dexedrine to Mobile County District Attorney Chris Galanos. Dr. Rudder claims that these news stories defamed him and that his right of privacy was invaded, and he seeks $2 million in compensatory and punitive damages.

WALA and Webb filed a motion to have Dr. Rudder produce all of his medical or psychiatric records concerning the treatment of Galanos, including records relative to prescriptions he wrote for dexedrine for Galanos. Through his attorney, Galanos asserted his psychiatrist-client privilege under Code 1975, § 34-26-2. Galanos had previously made a limited waiver of this privilege during the investigation of Dr. Rudder by the Board of Medical Examiners. Under the Board's own rules and regulations, Dr. Rudder's records that were used in its investigation are privileged and confidential and unavailable to the public. Galanos is not a party to this suit. Dr. Rudder refuses to turn over his records to WALA and Webb.

The trial court overruled Dr. Rudder's objection to the request for production and denied his motion for a protective order. The trial judge ruled that the documents in question are relevant and material to the defendants' defense of truth, that the psychiatrist-patient privilege gives way to the right grounded in the First Amendment to the United States Constitution, and that Galanos had waived any privilege he may have had concerning these records when he allowed their production to the State Board of Medical Examiners without first applying to the circuit court for a protective order.

Dr. Rudder seeks a writ of mandamus directed to the trial judge commanding him to vacate his order overruling Dr. Rudder's objection to defendants' request for production of documents and denying Dr. Rudder's motion for a protective order and commanding him to sustain Dr. Rudder's objection and grant his motion, or in the alternative, a writ of prohibition prohibiting him from overruling the objection and denying the motion. The documents in issue are Dr. Rudder's medical records pertaining to District Attorney Chris Galanos.

Petitioner Rudder contends that Galanos has not waived his privilege. We agree. Only the person entitled to claim an evidentiary privilege can waive that privilege by filing a lawsuit. See Mull v. String, 448 So.2d 952 (Ala.1984). Galanos is not a party to the present lawsuit. Also, Galanos did not waive his privilege by consenting to Dr. Rudder's production of his medical records to the Board of Medical Examiners and testimony before the Board for the reason that the disclosures to the Board were themselves privileged and confidential communications. "Waiver does not result as to disclosures which are themselves privileged communications." Jones on Evidence, Vol. 3, § 21:2, at 747 (6th ed. 1972).

Having determined that Galanos has not waived his privilege, we now must decide whether, under the facts of this case, the privilege should be recognized or disregarded.

Section 34-26-2, Ala.Code 1975, entitled Confidential relations and communications between licensed psychologists and psychiatrists and their clients, provides:

"For the purpose of this chapter, the confidential relations and communications between licensed psychologists and licensed psychiatrists and clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed."

It is not disputed that the medical records, created during the psychiatrist-patient relationship, are included in the confidential relationship and are also privileged. See Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973); 10 A.L.R.4th 552 Physician-Patient Privilege as Extending to Patient's Medical or Hospital Records (1981).

Statutes such as § 34-26-2 are intended to inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient, and are thus designed to promote the efficacy of the physician's advice or treatment. The exclusion of the evidence rests in the public policy and is for the general interest of the community. See 81 Am.Jur.2d Witnesses § 231 at 262 (1976); Annot., 44 A.L.R.3d 24 Privilege, in Judicial or Quasi-judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient (1972).

"[A] psychiatrist must have his patient's confidence or he cannot help him. 'The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. * * * It would be too much to expect them to do so if they knew that all they say--and all that the psychiatrist learns from what they say--may be revealed to the whole world from a witness stand.' "

Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955), quoting Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272.

The Alabama Rules of Civil Procedure recognize the importance of preserving confidential relationships and confidential information arising therefrom, by providing that privileged matters are not subject to discovery:

"RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY.

"...

"(b) Scope of discovery. ... [T]he scope of discovery is as follows:

"(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party...." (Emphasis added)

McCormick on Evidence, § 72 at 171 (1984), notes that evidentiary privileges do not aid in the ascertainment of truth, but are justified because they protect interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.

We also recognize that the discovery rules are to be broadly and liberally construed. Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So.2d 210 (1975), citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). This broad and liberal construction is intended to promote the philosophy of the rules, "which is to permit full discovery so as to save time, effort, and money and to expedite the trial and with a view of achieving justice for each litigant." Van Buren v. Dendy, 440 So.2d 1012, 1014 (Ala.1983). "Modern instruments of discovery serve a useful purpose. ... They together with pretrial procedures make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. ... Only strong public policies weigh against disclosure." United States v. Procter & Gamble Co., 356 U.S. 677, at 682-83, 78 S.Ct. 983, at 986, 2 L.Ed.2d 1077 (1958). Thus, at issue in the present case are two competing interests: the public's interest in protecting the psychiatrist-patient privilege and the interest in not handicapping defendants in defamation cases in discovery efforts in order to prepare their defense.

As recognized in Rule 26(b)(1), supra, and in Rule 26(c), the right of discovery is not unlimited, and the trial court has the power to prevent its abuse by any party. Van Buren v. Dendy, citing Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978).

"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...."

A.R.Civ.P., Rule 26(c).

Our research did not reveal the existence of any case raising the precise issue now before us--whether a news media defendant, in defense of an action for defamation brought by a psychiatrist (or other physician), has a right to discover that doctor's privileged medical records pertaining to one of his patients. Chronicle Publishing Co. v. Superior Court, 54 Cal.2d 548, 7 Cal.Rptr. 109, 354 P.2d 637 (1960), is, however, a somewhat analogous case.

In that case, an attorney brought an action against the defendant newspaper for libel based on an article it published which plaintiff claimed injured him in his professional reputation. The attorney contended that his professional reputation was good and that he had never been guilty of any misconduct. The...