Hardy v. Riser

• Decision Date: 09 February 1970
• Docket Number: No. WC 6925-K.,WC 6925-K.
• Citation: 309 F. Supp. 1234
• Parties: Elmo HARDY, Plaintiff, v. George RISER et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

309 F. Supp. 1234

Elmo HARDY, Plaintiff, v. George RISER et al., Defendants.

No. WC 6925-K.

United States District Court, N. D. Mississippi, W. D.

February 9, 1970.

Cliff Easley, Jr., Bruce, Miss., for plaintiff.

Collins Bailey, Batesville, Miss., for defendants.

MEMORANDUM OPINION ON OBJECTION TO TAKING OF DEPOSITION OF EXAMINING PHYSICIAN

KEADY, Chief Judge.

This is a personal injury action originally brought by Hardy, a Mississippi resident, against Riser and others, residents of Tennessee, in the Circuit Court of Calhoun County, Mississippi. Defendants removed the suit to this court and moved for and obtained a physical examination of plaintiff under Rule 35, F.R.Civ.P.¹ Defendants now seek to take, for use as evidence, the deposition of the examining physician, Dr. Morris Ray, a neurosurgeon of Memphis, Tennessee, to which plaintiff objects on the ground that medical information thus given would be a privileged communication under Miss.Code Ann. § 1697,² and, therefore, inadmissible at trial.

It is noted at the outset that plaintiff agreed to the examination only because he knew the court would likely order it if he did not agree.³ Under these circumstances, it is as if an order for physical examination, under Rule 35, had been entered. Furthermore, even though plaintiff has received a copy of the examining physician's report, it was sent to him by the physician as a matter of course and not at request of plaintiff or his counsel. The delivery of an unrequested medical report does not satisfy the waiver requirement of Rule 35(b) (2), F.R.Civ.P.⁴ As was stated in Annotation at 36 A.L.R.2d 951, "The rule certainly does not contemplate that the party causing an examination shall have the arbitrary power to obtain privileged reports of the examined party merely by delivering to him an unrequested report of a medical examination he was compelled by court order to undergo." Thus, plaintiff did not waive his physician-patient privilege as to his own attending physicians by the unsolicited receipt of a copy of the report of Dr. Ray, the examining physician; and defendants may not depose plaintiff's own attending physicians.

There being no waiver of the physician-patient privilege, the question arises: When a federal district court, in a diversity case, is sitting in a state which has a physician-patient privilege, such as Mississippi, does this privilege apply to a physician appointed by the court to make a physical examination of a party under Rule 35? There is a surprising dearth of law on this precise question, even though much has been written on both Rule 35 and the physician-patient privilege. One reason for this lack of authority in the Fifth Circuit may be that Mississippi is the only state in the Circuit which recognizes the physician-patient privilege in civil cases.⁵ This is rather curious since at least two-thirds of the states do recognize it,⁶ but even in those states there seems to be little case law exactly in point.

There is no federally-created physician-patient privilege.⁷ No such privilege existed at common-law,⁸ and with one or two rare judicially created exceptions,⁹ the privilege is a pure creature of statute.¹⁰ The rule has long been criticized by leading publicists,¹¹ and has been the subject of heated debate in Mississippi.¹² And while the privilege was recognized by the American Law Institute in its Model Code of Evidence,¹³ the recent Proposed Rules of Evidence for Federal District Courts do not recognize it.¹⁴ Potential conflicts between those rules and state-created statutory privileges are foreseeable, but fortunately beyond the scope of the present inquiry.¹⁵

Our threshold question, as in so many diversity cases, is an Erie one: Is the privilege substantive or procedural? Federal courts have generally found the privilege to be substantive.¹⁶ The Supreme Court of Mississippi, in pre-Erie decisions protecting the privilege, has often regarded the Mississippi physician-patient privilege as evidential, or procedural in character.¹⁷ Thus, it would seem that if the Mississippi interpretation of its own statute were literally followed, there would be no physician-patient privilege whatsoever in federal courts sitting in diversity cases in Mississippi. We seriously doubt, however, that any such startling result was ever intended by the State Supreme Court when it declared the privileged communication statute to be procedural and not substantive. It appears that the prime consideration of those cases was upholding the medical privilege and the constitutionality of the statute providing therefor by declaring that it was evidential only and did not impair any substantive rights.¹⁸ Be that as it may, we shall here adopt the reasoning of most federal tribunals and treat the physician-patient privilege as substantive for Erie purposes, requiring the application of state substantive law in diversity cases, as was well said by the Second Circuit in Massachusetts Mutual Life Insurance Co. v. Brei:¹⁹

"The patient-physician privilege is more than a rule of procedure since it goes to relationships established and maintained outside the area of litigation, and `affects people's conduct at the stage of primary private activity and should therefore be classified as substantive or quasisubstantive.'"

The court also notes that if the medical privilege were considered merely procedural or evidential, it would not be available in federal court diversity litigation, thereby undoubtedly creating the very forum-shopping which Erie sought to prevent. It is also significant that Rule 35(b) (2) refers to "waiver" (Fn. 4) of any privilege that a party may have. This language seems to recognize that where a privilege exists under state law, federal courts should recognize it, any substantive-procedural distinctions notwithstanding. Such has been the rule in the Fifth Circuit, which has held, without discussing the substantive-procedural dichotomy, that federal courts in this circuit will recognize a medical privilege created by state statute. Barnes v. United States, 374 F.2d 126 (5 Cir. 1967).

A brief survey of Mississippi decisions reveals no significant differences from the general law in other jurisdictions having medical privilege. The purpose of the privilege is to protect the patient by encouraging full and confidential disclosure to his physician of all information, however embarrassing, which might aid the physician in diagnosis and treatment.²⁰ As stated above, critics have frequently doubted that the privilege actually serves its stated purpose.²¹ Cognizant of the injustice which sometimes may arise by a suppression of full evidence relating to the true physical condition of a litigant, the Supreme Court of Mississippi stated in Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 131 A.L.R. 684 (1940), as follows:

"It is the court's duty to observe closely uses to which any procedural rule, whether of common law or statute, such as the statute declaring patient's communications to physician privileged, has been put, and prevent use thereof for ends of injustice or defeat of real justice when such improper use can at least be minimized by resort to other established procedural rules without intruding on what is essentially fundamental in judicial process or preservation of foundations of society." (In construing § 1536, Code of 1930, predecessor of present § 1697).

The above decision, which approved an instruction that the jury might draw an inference unfavorable to plaintiff for failing to offer a particular attending physician as a witness at trial, clearly recognizes that abuse may arise from a too-rigid application of the privilege statute.

Lawmakers and courts have attempted to prevent abuse of the medical privilege in a variety of ways. The problem has been attacked by statute in at least one state, which allows the presiding judge to refuse to recognize the privilege by directing a physician to testify "if in his opinion * * * it is necessary to a proper administration of justice".²² Certain exceptions have also been engrafted upon the privilege statutes to cover situations in which the privilege tended to suppress evidence which in the interest of justice should have been revealed. The Mississippi Legislature has engrafted such exceptions in the cases of workmen's compensation (Miss.Code Ann. § 6998-08(f)), venereal disease (§ 7079), insanity (§ 6909-04), alcoholism and drug addiction (§ 436-03), the Tumor Registry Act (§ 1697), and the amendatory statute allowing a patient's executor to waive the privilege following the patient's death (§ 1697). The Supreme Court of Mississippi has followed, in at least one case, the rule that when a party to a lawsuit takes the stand and voluntarily testifies as to his injuries, their treatment by physicians, and what he and his physician said about them, he waives his privilege.²³ Waiver of the privilege as to one of his physicians, however, does not operate as a waiver of the privilege as to any other physicians under Mississippi law.²⁴ Nor has the Mississippi court gone to the extent of declaring that the mere bringing of, or testifying in, a personal injury suit is a waiver of the privilege as to the injuries complained of.²⁵

The Mississippi court has consistently held that, to be privileged, physician-patient communications must be in a professional context and generally must be with a purpose of treatment. This rule is in keeping with the great weight of authority in other jurisdictions.²⁶

In three state criminal cases in which a physician appointed by the court or by the prosecution examined the accused, the privilege was held not to apply and the physician allowed to testify. In Hopkins v. State,²⁷ a physician appointed by the court to examine the accused and determine whether he was sane was allowed to testify on the ground that no physician-patient relationship existed. Hopkins relied upon Keeton v. State,²⁸...