Franklin Collection Service, Inc. v. Kyle

• Decision Date: 26 April 2007
• Docket Number: No. 2005-IA-00988-SCT.,2005-IA-00988-SCT.
• Parties: FRANKLIN COLLECTION SERVICE, INC. v. Patty KYLE.
• Court: Mississippi Supreme Court

955 So.2d 284

FRANKLIN COLLECTION SERVICE, INC. v. Patty KYLE.

No. 2005-IA-00988-SCT.

Supreme Court of Mississippi.

April 26, 2007.

William V. Westbrook, III, Gulfport, John Paul Barber, attorneys for appellant.

Frank A. Russell, Tupelo, attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

DICKINSON, Justice, for the Court.

¶ 1. The appellee's motion for rehearing is denied. The previous opinions are withdrawn and these opinions are substituted therefor.

¶ 2. This is a suit on open account to collect an unpaid medical bill. The medical services provider assigned its open account claim to a collection agency which, in turn, attached to its "open account" complaint an itemized listing of the code names and amounts charged for each service, as well as the history of payment and past due amounts. The patient responded with a counterclaim against both the collection agency and the medical services provider alleging violation of the physician-patient privilege and invasion of privacy.¹ The collection agency moved for summary judgment, which the trial court denied. We granted the collection agency permission to bring this interlocutory appeal presenting the question of whether there were triable issues of fact to be presented to the jury on either of the patient's claims. See M.R.A.P 5.

BACKGROUND FACTS AND PROCEEDINGS

¶ 3. Patty Kyle received medical treatment from Urology, P.A. ("Urology"). When she did not pay her $6,390.00 past due account, Urology assigned its claim on the open account to Franklin Collection Service, Inc. ("Franklin") to collect.

¶ 4. On June 25, 2003, Franklin filed suit under the "open account" statute, Miss Code Ann. Section 11-53-81 (Rev.2002), seeking recovery of the unpaid medical bill, attorney's fees, and court costs. Attached to the complaint was an itemized statement of Kyle's medical bill listing the codes for various services rendered by Urology:²

                  ADM D/C SAME DATE
                  COMPHR                99235-25   $  410.00
                  URETEROSCOPY WITH
                  LITHOTR                  52353   $4,020.00
                  CYSTOSCOPY, STONE
                  MANIP                 52320-51   $1,100.00
                  CYSTOSCOPY
                  INSERTION             52332-51   $  860.00
                  DOUBLE J STENT
                  POST-OP VISIT
                  INCLUDED IN              99024   $    0.00
                  GLOBAL PACKAGE
                  KUB SINGLE AP VIEW       74000   $   90.00
                

¶ 5. Kyle responded to the complaint by filing an "Answer and Counter Complaint"³ against both Urology and Franklin for "violating the medical privilege of [Kyle] by causing confidential medical information to be attached to the Complaint filed in this cause and published as a matter of public record." Kyle also alleged severe emotional distress and invasion of privacy and sought compensatory and punitive damages from both parties. Franklin, joined by Urology, moved for summary judgment on Kyle's counterclaim.

¶ 6. On February 11, 2005, the trial court denied the motion, stating as its reason that this was a case of first impression. Franklin filed a motion to reconsider, which the trial court denied. Franklin then moved for leave to take an interlocutory appeal, which this Court granted. See M.R.A.P. 5.

¶ 7. Although Franklin and Kyle raise numerous issues on appeal, we need only address the following three: (1) whether the information attached to Franklin's "open account" complaint was privileged under the statutes enacted by the Legislature or the rules promulgated by this Court; (2) whether Franklin was entitled to summary judgment on Kyle's claim for negligent or intentional infliction of emotional distress; and (3) whether Franklin was entitled to summary judgment on Kyle's claim for invasion of privacy.

DISCUSSION

¶ 8. Our standard of review in this interlocutory appeal is mixed. As to Kyle's claim that the defendants violated her physician-patient privilege, we are called upon to interpret a statute and an evidentiary rule. The law is settled that "[s]tatutory interpretation is a matter of law which this Court reviews de novo." Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss.2002) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss. 1999)). We have also stated that "[t]he application of privilege is properly a mixed question of law and fact, with the [trial court's] factual findings reviewed for clear error and its interpretation of the law reviewed de novo." Hewes v. Langston, 853 So.2d 1237, 1241 (Miss.2003) (citing United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994)).

¶ 9. We must also consider the trial court's denial of Franklin's motion for summary judgment on Kyle's claims of negligent and intentional infliction of emotional distress and invasion of privacy. Summary judgment is governed by Mississippi Rule of Civil Procedure 56. We review de novo a trial court's disposition of a motion for summary judgment. Webb v Braswell, 930 So.2d 387, 395 (Miss.2006). In conducting our review, the evidence must be viewed in the light most favorable to the non-moving party. Hataway v. Estate of Nicholls, 893 So.2d 1054, 1057 (Miss.2005). The movant carries the burden of demonstrating that no genuine issue of material fact exists. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000). In responding to a motion for summary judgment,

an adverse party may not rest upon the mere allegations or denials of his [or her] pleadings, but his [or her] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he [or she] does not so respond, summary judgment, if appropriate, shall be entered against him [or her].

Miss. R. Civ. P. 56(e). See also Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005) (summary judgment for the movant should be entered if no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law).

I. Whether the information attached to Franklin's "open account" complaint was privileged under the statutes enacted by the Legislature or rules promulgated by this Court.

¶ 10. The primary issue in this case is whether the itemized statement of account attached to the complaint is covered and protected by the physician-patient privilege. We begin our analysis by noting that the physician-patient privilege did not exist at common law. See Whalen v. Roe, 429 U.S. 589, 602 n. 28, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Thus, the medical privilege exists in Mississippi only to the extent of the narrow privilege created by Section 13-1-21 of the Mississippi Code, and the broader privilege created by Rule 503 of the Mississippi Rules of Evidence.

Miss.Code Ann. Section 13-1-21

¶ 11. Pursuant to Miss.Code Ann. Section 13-1-21(1) (Rev.2002), "[a]ll communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his [or her] charge or by one seeking professional advice are hereby declared to be privileged . . . ." (Emphasis added). Initially, we note that Section 13-1-21 does not claim to be a substantive law of general application, but rather an evidentiary statute to be applied in the courts. The statute is part of chapter 1, title 13 of the Mississippi Code, entitled "Evidence, Process and Juries." Section 13-1-1 states that "[a]ll provisions contained in this chapter, unless restricted by their nature or by express provision to particular courts, shall apply to and govern all courts."

¶ 12. Because Section 13-1-21 is an evidentiary statute, its provisions are subject to, and superceded by, provisions of the Mississippi Rules of Evidence. See Newell v. State, 308 So.2d 71, 77-78 (Miss. 1975). This Court, by order dated September 24, 1985, promulgated the Mississippi Rules of Evidence which "govern all proceedings in any action had on or after January 1, 1986." Thus, Mississippi Rule of Evidence 503 (discussed infra), rather than Section 13-1-21, governs the medical privilege and the issue in this case.

¶ 13. However, even if the statute were applicable, it does not, by its very specific language, cover the information at issue,⁴ and this Court has no right, prerogative or duty to bend a statute to make it say what it does not say. No citation of authority is necessary for the proposition that courts, judges, and justices sit to apply the law as it is, not make the law as they think it should be. That said, we now proceed to carefully examine the words the Legislature chose to include in the statute in order to fairly determine whether they apply to the facts of this case.

¶ 14. The only privilege established by the clear and unambiguous language of Section 13-1-21 is for "communications made to a physician . . . by a patient under his [or her] charge or by one seeking professional advice. . . ." As applied to a physician and his or her patient, no other privilege is found within the statute. Thus, if we are to be faithful to the statute, we must limit what is privileged thereunder to communications made to a physician by a patient. Put into the form of a question, is the information at issue in this case something the patient communicated in any way to the physician? Clearly not. Rather, the information at issue is the amount due by Kyle and a list of charges and procedures which are identified by code words. Since Kyle does not even allege that these code words and amounts due are communications she made to her doctor, the statute cannot and does not apply to the facts of this case.⁵ The Legislature has not found it wise or appropriate to bring the names of medical procedures within the purview of the statute, and we shall not do it for them here.

Mississippi Rule of Evidence 503

¶ 15. The Mississippi Rules of Evidence provide a broader physician-patient privilege than does Section 13-1-21. Rule 503(b) includes two categories of privileged information. The first is "knowledge derived by the physician . . . by virtue of his [or her] professional relationship with the patient." Miss. R. Evid. 503(b)(A). Unlike ...