Hammonds v. Aetna Casualty & Surety Company

• Decision Date: 26 July 1965
• Docket Number: No. C64-736.,C64-736.
• Citation: 243 F. Supp. 793
• Parties: Lloyd HAMMONDS, Plaintiff, v. AETNA CASUALTY & SURETY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

243 F. Supp. 793

Lloyd HAMMONDS, Plaintiff, v. AETNA CASUALTY & SURETY COMPANY, Defendant.

No. C64-736.

United States District Court N. D. Ohio, E. D.

July 26, 1965.

COPYRIGHT MATERIAL OMITTED

Sheldon R. Walker, Willoughby, Ohio, Edward H. Stinson, Cleveland, Ohio, for plaintiff.

Arter, Hadden, Wykoff & Van Duzer, Smith Warder, Eugene Bleiweiss, Cleveland, Ohio, for defendant.

CONNELL, Chief Judge.

Plaintiff has complained that the defendant insurance company, without just cause, had persuaded the plaintiff's treating physician to discontinue that relationship, and, further, that the defendant induced the doctor to divulge confidential information gained through the physician-patient relationship. In particular, it is alleged that the defendant, at the behest of a prominent defense attorney, persuaded Dr. Alexander Ling, the plaintiff's treating physician, to surrender certain undisclosed confidential information for use in pending litigation against the plaintiff on the false pretext that the plaintiff was contemplating a malpractice suit against Dr. Ling. We overruled the defendant's Motion to Dismiss on January 6, 1965, 237 F.Supp. 96, holding that the alleged misconduct, if proven true, would require the defendant to respond in damages to the plaintiff. The defendant has now moved for a summary judgment, contending that the operative facts are not in controversy and that the defendant is entitled to judgment as a matter of law. Attached to the Motion for Summary Judgment is an "Appendix" in which the defendant again challenges the wisdom of the Court's earlier opinion in support of the order overruling the Motion to Dismiss. We recognize this "Appendix" as a Motion for Reconsideration of that opinion, and therefore we will give first attention to this Motion before addressing the defendant's prayer for summary judgment.

I.

The motion for reconsideration is directed to that part of the Court's opinion (237 F.Supp. 96, 101-102) dealing with the alleged inducement of the physician's breach of his duty to secrecy. The vigor with which counsel for defense (who are regularly concerned with the legal responsibilities of the medical profession) advance the argument that a physician may reveal information gained in confidence, requires that we re-emphasize the reasons underlying our first Memorandum. The defendant argues that, since there was no common law privilege clothing communications between doctor and patient with confidentiality, there can be no common law action for the breach of confidence¹ nor for the inducement of such a breach. The privileged communication statute, according to the defendant, merely precludes a doctor from testifying in court as to communications received while treating a patient; as far as the law and the statute are concerned, the doctor is uninhibited in his private discussions about his patient² and the insurance company is perfectly free to promote a full discussion in private of any communication made by the patient to the doctor. The defendant has thus illustrated its total failure to grasp the basis of the Court's earlier opinion in this case. Modern public policy, not the archiac whims of the common law, demands that doctors obey their implied promise of secrecy.

This is not the first time, nor will it be the last, that a court, confronted with a unique situation, must, after an unsuccessful search for binding precedent on point, repair to the dictates of public policy to do justice between litigants at the bar of justice. What is the meaning of "public policy?" As stated by the Ohio Supreme Court in The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Kinney, 95 Ohio St. 64, 68, 115 N.E. 505, L.R.A.1917D, 641 (1916):

"In substance, it may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare and the like. It is that general and well-settled public opinion relating to man's plain, palpable duty to his fellowmen, having due regard to all the circumstances of each particular relation and situation.

"Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people — in their clear consciousness and conviction of what is naturally and inherently just and right between man and man.

* * * * * *

"When a course of conduct is cruel or shocking to the average man's conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute, or decree of court.

"It has frequently been said that such public policy, is a composite of constitutional provisions, statutes, and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from the most superficial examination.

* * * * * *

"Public policy is the cornerstone — the foundation — of all Constitutions, statutes, and judicial decisions; and its latitude and longitude, its height and its depth, greater than any or all of them."

We see this concomitant policy reflected in three separate indicia: the promulgated code of ethics adopted by the medical profession on which the public has a right to rely; the privileged communication statute, which precludes the doctor from testifying in open court; and that part of the State Medical Licensing Statute which seals the doctor's lips in private conversation.

In all medical jurisprudence there are few problems which have deserved and received more concentrated attention than the protection of the personal information which a patient remits to his physician. This relationship "is one of trust and confidence. It is submitted that the best interest of the patient is served in trusting his welfare to the skill and industry of his physician." Regan, Doctor and Patient and the Law, 113 (1956). To foster the best interest of the patient and to insure a climate most favorable to a complete recovery, men of medicine have urged that patients be totally frank in their discussions with their physicians. To encourage the desired candor, men of law have formulated a strong policy of confidentiality to assure patients that only they themselves may unlock the doctor's silence in regard to those private disclosures. The result which these joint efforts of the two professions have produced, and which we recognized in our earlier opinion, has been urged or forecast in una voce by commentators in the field of medical jurisprudence. Stetler & Moritz, Doctor and Patient and the Law, 269-273 (1962); Regan, supra; Shartel & Plant, Law of Medical Practice, 48-50, 162, 178-180 (1959); DeWitt, Physician in the Courtroom, Medical Ethics and the Law: The Conflict Between Dual Allegiances, p. 33 (1954); Chafee, Privileged Communications: Is Justice Served Or Obstructed By Closing the Doctor's Mouth On the Witness Stand?, 52 Yale Law Journal, 606, 616 (1943). To these commentators, the Court's earlier ruling comes as no surprise.

The defendant generously concedes that the Hippocratic Oath embodies some restriction on a doctor's right to discuss the condition of, and communications from, his patient. The Oath of Hippocrates, in so far as here pertinent, provides:

"Whatever in connection with my professional practice or not in connection with it I see or hear in the life of men which ought not to be spoken abroad I will not divulge as recommending that all such should be kept secret."

We agree with the defendant that there are some situations³ where divulgence will inure to the benefit of the public at large or even to the patient himself, but we have no such situation before us. The plaintiff here was engaged in litigation for an injury (which Dr. Ling was treating) allegedly sustained at the negligent hand of the Euclid-Glenville Hospital, which was represented by an attorney for whom the defendant here allegedly secured confidential information from Dr. Ling. In this adversary judicial system, with its intensity heightened by the continuing friction between insurance companies and claimants, is there no impropriety in a doctor discussing the case of his patient-plaintiff with the lawyer for the defending insurance company? Who would dare say so?

The defendant has criticized the Court's application of the language in the licensing statute to the case at bar. For this argument defendant cites McPheeters v. Board of Medical Examiners, 103 Cal.App. 297, 284 P. 938 (1930), where the court held that the phrase "Willful betrayal of professional secret" did not apply to all disclosures which a physician may intentionally make. In restoring the license of the petitioning doctor, the court held that the above phrase required a showing of deliberate intent to do injury rather than merely an intentional disclosure of a confidence. In that case the physician had written letters to a former assistant who was acquainted with his patients and familiar with their ailments; the letters contained information on the type of operations the doctor had performed, the condition of some of his patients and the progress of their recoveries. The letters contained nothing which would in any way tend to disgrace, embarrass or incriminate any of the patients. The court held that the phrase in question "willful betrayal of a professional secret" —

"* * * implies a deliberate intention for which no reasonable excuse can be given to do or refrain from doing some act which good faith in the performance of some duty requires, as the case may be. It further implies that there must be some design or purpose and intent to do an injury. The word sometimes means `with a bad purpose and with the intention designedly and purposely to cause injury.' So it has been held that an act,

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