Green v. Superior Court, In and For San Joaquin County

• Decision Date: 12 September 1963
• Citation: 220 Cal.App.2d 121,33 Cal.Rptr. 604
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas GREEN, Bruno Lanzarotti, Orville Fox, Lloyd Organ, William McGeorge, Norman Silva, Steve Mohorovich and William Brierley, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN JOAQUIN, Respondent. Civ. 10704.

Page 604

33 Cal.Rptr. 604

220 Cal.App.2d 121

Thomas GREEN, Bruno Lanzarotti, Orville Fox, Lloyd Organ, William McGeorge, Norman Silva, Steve Mohorovich and William Brierley, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN JOAQUIN, Respondent.

Civ. 10704.

District Court of Appeal, Third District, California.

Sept. 12, 1963.

Hearing Denied Nov. 6, 1963.

James Robert Nielsen, Carmel, and Robert E. Green, Stockton, for petitioners.

Chargin & Briscoe and John Kappos, for real party in interest.

Richard W. Dickenson, County Counsel, Richard W. Johnson, Deputy, Stockton, for respondent.

PIERCE, Presiding Justice.

In a divorce action instituted by the wife, the husband cross-complained. A main issue at the trial was custody of the children. The husband contended the wife was an unfit person because of her excessive use of narcotic drugs. During the trial there was evidence (according to the allegations of respondent court's answer in these proceedings) that the wife had obtained prescriptions from eight or ten physicians and that she had purchased prescription drugs from ten or more different drugstores. The husband's counsel caused subpoenas duces tecum to be issued to petitioners, who are pharmacists, to appear at the trial bringing with them their prescription records. They appeared but refused to testify as to the nature of the drugs dispensed and as to their strength. Respondent court found them guilty of contempt, fined each $25 and stayed execution pending the determination of these proceedings. ¹

A writ of review, prayed for here, is the proper method to annual a contempt order if it is made in excess of jurisdiction. (Code Civ. Proc. sec. 1068; State Board of Equalization of State of California v Superior Court, 20 Cal.2d 467, 471, 127 P.2d 4.)

The grounds of petitioners' refusal to testify were that information as to the nature and strength of the drugs dispensed by a pharmacist on prescription by a licensed physician is as much a part of the physician-patient privilege as would be the testimony of the physician himself.

Petitioners' contention may be summarized thusly: Although the statute (Code Civ.Proc. sec. 1881, subd. 4) does not expressly mention a pharmacist dispensing a doctor's prescription as falling within the privileged class, such should be inferred because (a) physicians do not usually dispense their own prescribed drugs but must rely upon pharmacists, (b) use of some drugs is exclusively for the treatment or cure of specific ailments, e. g., use of antabuse for alcoholism, dilantin for epilepsy; (c) in such cases knowledge of the drug dispensed would reveal the patient's confidentially-communicated information to the doctor, and therefore (d) to protect the communication the privilege must be extended to the dispensing pharmacist.

The question is novel in California and petitioners cite no case bringing the pharmacist within the physician-patient privilege in any other jurisdiction. Respondent cites two cases from other states holding that the pharmacist dispensing a doctor's prescription is not within the privilege. (Brown v. Hannibal & St. Joseph R. Co., 66 Mo. 588 (1877); Deutschmann v. Third Ave. R. Co., 87 App.Div. 503, 84 N.Y.S. 887.) In the latter case the court says (on page 894 of 84 N.Y.S.):

'* * * The necessity of having physicians' prescriptions filled by druggists may furnish a reason for the Legislature to say that public policy will interpose to prevent them from making disclosures of the information thus obtained, but we are not now dealing with such question. It is enough now to say that the statute in question has no application to such a situation.'

Petitioners urge that California authorities hold that the privilege is to be liberally construed in favor of the patient. (Turner v. Redwood Mutual Life Ass'n, 13 Cal.App.2d 573, 576, 57 P.2d 222; Kramer v. Policy Holders', etc., Ass'n, 5 Cal.App.2d 380, 42 P.2d 665.) They point to the fact that prescriptions of a medical practitioner may be dispensed or compounded only by a registered pharmacist (Bus. & Prof.Code, sec. 4050) or by the physician himself (Id., sec. 4051) and that a pharmacist is required to treat the contents and effect of a prescription and the nature of the patient's illness as being confidential. (Calif.Adm.Code, Title 16, Chap. 17, Art. 9, Sec. 1764.) It is not contended, and could not be, that this latter section in and of itself creates a privilege. Existence of a confidential relationship does not ipso facto cause communications between the confidants to be privileged. Petitioners cite cases from other jurisdictions holding that hospital records and X-rays are within the privilege. (Palmer v. John Hancock Mut. Life Ins. Co., 150 Misc. 669, 270 N.Y.Supp. 10; Hansen v. Sandvik, 128 Wash. 60, 222 P. 205; In re Nickel's Estate, 321 Mich. 519, 32 N.W.2d 733.)

They also argue that the 'intermediate agent' concept as applied in City and County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26, 25 A.L.R.2d 1418, in relation to the attorney-client privilege, should, by analogy, be said to apply here. In City & County of San Francisco it was held that a physician employed by a plaintiff's attorney in an action for personal injuries to examine the plaintiff and evaluate her complaints could not be compelled by the defendant to testify, but this was not because of the physician-patient privilege, it was because of the attorney-client privilege. Petitioners urge the cases are analogous. As has been stated by Dean Wigmore (8 Wigmore on Evidence, McNaughton Rev., sec. 2380a, p. 831) 'Nothing is more fallible than an argument from analogy. * * * [T]he answer is that the services of an attorney are sought primarily for aid in litigation, actual or expected, while those of the physician are sought for physical cure; that hence the rendering of that legal advice would result directly and surely in the disclosure of the client's admissions if the attorney's privilege did not exist, while the physician's curative aid can be and commonly is rendered irrespective of making disclosure; and, finally, that thus the absence of the privilege would convert the attorney habitually and inevitably into a mere informer for the benefit of the opponent, while the physician, being called upon only rarely to make disclosures, is not consciously affected in his relation with the patient. The function of the two professions being entirely distinct, the moral effect upon them of the absence of the privilege is different.'

The distinct nature of the attorney-client relationship is also pointed out by Justice Traynor in City & County of San Francisco, supra, 37 Cal.2d at page 235, 231 P.2d at page 30, 25 A.L.R.2d 1418, where a portion of the above statement by Dean Wigmore is quoted.

The physician-patient privilege did not exist at common law and it has been roundly criticized by common-law scholars. (See e. g., 8 Wigmore on Evidence, McNaughton rev., secs., 2380, 2380a, pages 818, 829; McCormick on Evidence, sec. 101, p. 212; Dean Hale in 'Codification of the Law of Evidence,' 1937, p. 111--as quoted in 2 Hastings Law Journal, p. 39.)

Its birth was statutory, in New York in 1828, seemingly engendered by the law-makers' entrapment in the fallacy of 'argument by analogy' discussed above, comparing the doctor-patient privilege to the statements of Buller, J., in 1792, in a case involving confidential communications to a lawyer. (McCormick p. 221.)

The doctor-patient privilege appears to have been adopted in two-thirds of the states. (8 U.C.L.A.Law Rev. 625.) In California it is venerable. (Stats.1851, ch. 1, sec. 398, p. 114.) The language of the original statute, 'A licensed physician or surgeon shall not, without the consent of his patient, be examined as a witness, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient' has not been materially altered throughout the years except to limit the privilege to civil cases. However, number of exceptions have been written into the code section (Code Civ.Proc. sec. 1881, subd. 4), one of which will be noted below.

The purpose of the privilege has been described as dual: (1) to encourage free disclosure of facts by the patient to the doctor which otherwise might be withheld and which may aid the doctor in diagnosis and treatment (8 Wigmore, McNaughton rev., sec. 2380a, p. 828); and, carrying this 'to its next logical step,' (2) to 'prevent the humiliation of the patient which might occur by disclosure of his ailments.' (8 U.C.L.A. Law Rev. p. 625; City & County of San Francisco v. Superior Court, supra, 37 Cal.2d p. 232, 231 P.2d p. 28, 25 A.L.R.2d 1418.)

Criticism of the doctrine may be epitomized:

Dean Wigmore opines that few communications by a patient...