Green v. Bloodsworth

• Decision Date: 02 July 1985
• Citation: 501 A.2d 1257
• Parties: Adrienne L. GREEN and Paul L. Green, her husband, Plaintiffs, v. Noble C. BLOODSWORTH, Defendant. . Submitted:
• Court: Delaware Superior Court

Page 1257

501 A.2d 1257

Adrienne L. GREEN and Paul L. Green, her husband, Plaintiffs, v. Noble C. BLOODSWORTH, Defendant.

Superior Court of Delaware Kent County.

Submitted: July 2, 1985.

Decided: Oct. 18, 1985.

Upon defendant's motion requesting an order which the defendant can present to any health care provider to obtain records or information concerning plaintiffs. Motion granted.

A. Richard Barros and Gary L. Smith, of Barros, McNamara & Scanlon, Dover, for plaintiffs.

Robert B. Young, of Young & Sherlock, Dover, for defendant.

RIDGELY, Judge.

This is a civil action brought by Adrienne L. Green and Paul L. Green, her husband ("plaintiffs"), against Noble C. Bloodsworth ("defendant") for money damages arising from personal injuries sustained in an automobile collision. During the course of pretrial discovery, plaintiffs have provided defendant all medical records in their possession, but plaintiffs have refused to execute a medical authorization to permit defendant's counsel to confer directly with plaintiffs' physicians. It is undisputed that the treating physicians are not accessible to defense counsel by informal conference unless an authorization from plaintiffs or the Court is obtained. Defendant has moved the Court for an order which the defendant can present to any health care provider granting permission to provide all medical information and material to defense counsel relating in any way to plaintiffs. Plaintiffs oppose the motion and respond that defendant may depose anyone he chooses and that he may talk to whomever he chooses, on or off the record, if that person is willing to confer with him.

The law is clear that, by the filing of a personal injury action, plaintiffs waive the physician-patient privilege as to all medical information relevant to the claim. D.U.R.E. 503(d)(3). ¹ A contrary rule would lead to injustice and the suppression of the truth. 8 Wigmore, Evidence § 2389 (McNaughton rev. 1961); McCormick on Evidence § 105 (3d ed. 1984).

Plaintiffs' refusal to execute an authorization effectively forces the defendant to proceed by formal deposition of the treating physicians. However, the availability of formal discovery devices under the Rules of Civil Procedure does not justify any limitation of informal discovery.

"Unless impeded by privilege an adversary may inquire, in advance of trial, by any lawful manner to learn what any witness knows if other appropriate conditions the witness alone may impose are satisfied, e.g., compensation for his time and expertise or payment of reasonable expenses involved, and while the Federal Rules of Civil Procedure have provided certain specific formal methods of acquiring evidence from recalcitrant sources by compulsion, they have never been thought to preclude the use of such venerable, if informal, discovery techniques as the ex parte interview of a witness who is willing to speak."

Doe v. Lilly & Company, Inc., D.D.C., 99 F.R.D. 126, 128 (1983). It is a costly and inefficient method of producing evidence to require depositions of medical witnesses without knowing in advance whether the testimony will be useful. It is also unfair to require a medical witness to testify before he has had an opportunity to familiarize himself with the claim or to review the medical record. Lazorick v. Brown, App.Div., 195 N.J.Super. 444, 480 A.2d 223, 229 (1984).

Not only is there no express law or rule prohibiting defense counsel from obtaining information from a plaintiff's physician through informal discussion, there is no public policy consideration favoring nondisclosure when no privilege exists. Except for privileges accorded by law, no person has a privilege to "[p]revent another from being a witness or disclosing any matter or producing any object or writing." D.U.R.E. Rule 501(4). Yet plaintiffs' refusal to execute an authorization is, in fact, preventing informal disclosures to defense counsel, and not surprisingly so.

"The inchoate threat implicit in refusing or qualifying permission to speak to a witness in possession of privileged information operates to intimidate the witness, who is then placed in the position of withholding or divulging what he knows at his peril, and is itself a species of improper influence. It also enables the party so wielding the privilege to monitor his adversary's progress in preparing his case by his presence on each occasion such information is revealed while his own preparation is under no such scrutiny."

Doe v. Lilly & Company, Inc., supra, 99 F.R.D. at 129. This Court will not condone the use of the formal discovery rules as a shield against defense counsel's informal access to a witness when these rules were intended to simplify trials by expediting the flow of litigation, Wileman v. Signal Finance Corporation, Del.Supr., 385 A.2d 689, 691 (1978), and to encourage the production of evidence, Papen v. Suburban Propane Gas Corporation, Del.Super., 229 A.2d 567, 570 (1967). Moreover, "informal methods are to be encouraged, for they facilitate early evaluation and settlement of cases, with a resulting decrease in litigation costs, and represent further the wise application of judicial resources." Trans-World Investments v. Drobny, Alaska Supr., 554 P.2d 1148, 1152 (1976).

Plaintiffs argue that informal interviews would disrupt the orderly discovery procedure, permit defense counsel to privately inquire into irrelevant matters, and expose a physician to tort liability. Plaintiffs further submit that, by requiring the presence of plaintiffs' counsel during formal discovery, plaintiffs' fear that personal confidences are being disclosed would be allayed. It is also contended that formal discovery preserves the sanctions and protections available under the Rules of Civil Procedure. Finally, it is contended that informal interviews would give rise to assistance to the patient's antagonist in litigation and that such interviews should not be allowed. Plaintiffs cite as authority Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333 (1976), ...