Fierstein v. DePaul Health Center, 70334

• Decision Date: 22 April 1997
• Docket Number: No. 70334,70334
• Parties: Judy FIERSTEIN, Plaintiff-Appellant, v. DePAUL HEALTH CENTER, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 90

949 S.W.2d 90

Judy FIERSTEIN, Plaintiff-Appellant, v. DePAUL HEALTH CENTER, Defendant-Respondent.

No. 70334.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 22, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 29, 1997.

Application to Transfer Denied

Aug. 19, 1997.

The Schechter Law Firm, P.C., Theodore S. Schechter, Michael L. Schechter, Michael P. Cohan, Clayton, for Plaintiff-Appellant.

Lashly & Baer, P.C., Kenneth C. Brostron, Nelson G. Wolff, St. Louis, for Defendant-Respondent.

HOFF, Judge.

Judy Fierstein (Mrs. Fierstein) sued DePaul Health Center (DePaul) under count one for violating § 630.140 RSMo 1994 ¹ and, under count two, for breaching a fiduciary duty owed her under the physician/patient privilege. The lawsuit was filed after medical records reflecting Mrs. Fierstein's hospitalization at DePaul were sent directly to her ex-husband's attorney while a motion to modify the couple's decree of dissolution was pending. After DePaul received a subpoena issued July 6, 1994, the hospital immediately sent Mrs. Fierstein's medical records to her ex-husband's attorney instead of complying with the subpoena which required DePaul's custodian of records to appear and produce the records at a July 15, 1994 deposition. Mrs. Fierstein appeals the trial court's order granting summary judgment in favor of DePaul on both counts. We affirm in part and reverse and remand in part.

Dr. Jeffrey Fierstein (Dr. Fierstein) and Mrs. Fierstein were divorced on April 6, 1992. Primary physical custody of the couple's two minor children was granted to Mrs. Fierstein. On May 9, 1994, Dr. Fierstein filed a motion to modify the decree of dissolution requesting that he be awarded primary physical custody of the children. Additionally, Dr. Fierstein requested that the trial court terminate his obligation to pay child support and restrict Mrs. Fierstein's visitation with the children to only allow her to see them under supervision.

In support of the motion and to establish a substantial and continuing change in circumstances, Dr. Fierstein alleged Mrs. Fierstein had an alcohol problem and "suffer[ed] from serious psychiatric and psychological problems which cause[d] her to act obsessively, irrationally and to neglect and abuse the minor children." The motion further alleged Mrs. Fierstein had been hospitalized for her psychiatric problems, had neglected the children by failing to take them to their activities, had been verbally abusive to the children, and had failed to supervise the children properly.

Pursuant to this motion, Dr. Fierstein's attorney caused the service of a subpoena duces tecum for deposition upon DePaul. The subpoena ordered DePaul's custodian of records to appear at a deposition at the office of Dr. Fierstein's attorney on July 15, 1994 and to produce at that time "[a]ny and all records pertaining to or concerning Judy Diane Fierstein ... including but not limited to her hospitalization on or about April 24, 1994 through April 27, 1994." Attached to the subpoena was a letter from Dr. Fierstein's attorney informing DePaul's custodian of records that the requested documents could be mailed to her law office prior to the date of deposition to avoid appearing at the deposition.

DePaul's custodian of records received the subpoena, executed an affidavit, and immediately mailed the requested documents to Dr. Fierstein's attorney. From the available record, it appears that Mrs. Fierstein's attorney had prior notice of the deposition, but did not receive prior notice that DePaul would release the records before the scheduled deposition. Mrs. Fierstein never gave DePaul her consent or authorization for the release of her medical records.

On August 22, 1994, Dr. Fierstein dismissed his motion to modify the decree of dissolution. As a result, Mrs. Fierstein retained primary physical custody of the minor children.

On November 4, 1994, Mrs. Fierstein filed a lawsuit against DePaul. In count one, she alleged that DePaul's release of her medical records to third parties without her consent violated § 630.140 which governs the release of confidential medical records. In count two, Mrs. Fierstein alleged the release of her medical records violated the physician/patient privilege, as well as fiduciary and ethical duties owed her by DePaul. DePaul subsequently filed a motion for summary judgment and memorandum in support alleging that Mrs. Fierstein's petition failed to state an actionable claim under count one and that no fiduciary duty existed under count two. The trial court entered summary judgment in favor of DePaul on both counts. This appeal followed.

When considering an appeal from a summary judgment, this Court reviews the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Facts set forth by affidavit or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the motion for summary judgment. Id. We allow the non-movant the benefit of all reasonable inferences from the record. Id.

Our review of an appeal from a summary judgment is essentially de novo. Id. Our criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court in determining whether to sustain the motion initially. Id. This is because the propriety of summary judgment is purely an issue of law. Id. Because the trial court makes its decision based solely upon the record submitted and the law, we need not defer to the trial court's order granting summary judgment. Id.

Mrs....