Heller v. Norcal Mutual Ins. Co., S034539

• Decision Date: 25 July 1994
• Docket Number: No. S034539,S034539
• Court: California Supreme Court
• Parties: , 876 P.2d 999 Doris HELLER, Plaintiff and Appellant, v. NORCAL MUTUAL INSURANCE COMPANY et al., Defendants and Respondents. Doris HELLER, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent; NORCAL MUTUAL INSURANCE COMPANY et al., Real Parties in Interest.

Page 200

32 Cal.Rptr.2d 200

8 Cal.4th 30, 876 P.2d 999

Doris HELLER, Plaintiff and Appellant, v. NORCAL MUTUAL INSURANCE COMPANY et al., Defendants and Respondents.

Doris HELLER, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent;

NORCAL MUTUAL INSURANCE COMPANY et al., Real Parties in Interest.

No. S034539.

Supreme Court of California,

In Bank.

July 25, 1994.

Roger K. Vehrs, Thornton Davidson, Tritt & Tritt and James F. Tritt, Fresno, for plaintiff and appellant and for petitioner.

Diehl, Steinheimer, Riggio, Haydel & Mordaunt, M. Max Steinheimer, Bryan D. Smith, Joseph H. Fagundes, Stockton, Anderson, Galloway & Lucchese, G. Patrick Galloway, Karen A. Sparks, Walnut Creek, Diepenbrock, Wulff, Plant & Hannigan, Dennis M. Campos, Sean O. Sheridan and John R. Haluck, Sacramento, for defendants and respondents and for real parties in interest.

Horvitz & Levy, David S. Ettinger, Richard L. Hasen, Encino, Greines, Martin, Stein & Richland, Timothy T. Coates and Barry M. Wolf, Beverly Hills, as amici curiae on behalf of defendants and respondents and real parties in interest.

No appearance for respondent Superior Court.

LUCAS, Chief Justice.

In this case we consider whether unauthorized ex parte discussions that occur during the discovery phase of a medical malpractice action between a nonparty treating physician and the defendant physician's malpractice insurer, regarding the litigant patient's medical condition, violate either the Confidentiality of Medical Information Act (Civ.Code, § 56 et seq.; all statutory references are to this code unless otherwise indicated), or the constitutional right to privacy (Cal. Const., art. I, § 1).

We granted review to consider whether plaintiff's seventh and eighth causes of action in her fourth amended complaint state claims against defendants Dr. Kent Yamaguchi (plaintiff's treating physician), and Valley Plastic Surgeons Medical Group, Inc. (Yamaguchi's medical services organization, and hereafter VPSMG), for violation of section 56 et seq., based on unauthorized ex parte discussions about plaintiff's medical condition that occurred between Yamaguchi and Norcal Mutual Insurance Company (hereafter Norcal), and other nonparties, during the discovery phase of a separate malpractice action plaintiff had filed against her original physician, Dr. Geis (Yamaguchi's associate). ¹ Plaintiff filed the present action We must also determine whether these same ex parte discussions support plaintiff's 12th cause of action against Yamaguchi and Norcal (Yamaguchi and Geis's malpractice insurer) for violation of plaintiff's constitutional right to privacy under article I, section 1 of the California Constitution.

(to which Geis is not a party) after settling her lawsuit against Geis for $400,000. ²

As we explain, we conclude that because the purpose of the ex parte discussions was to assist Norcal in defending the malpractice action against Geis, Yamaguchi (and VPSMG) are exempt from liability under section 56.10, subdivision (c)(4) (hereafter, section 56.10(c)(4)), which allows health care providers and insurers to conduct ex parte discussions to facilitate preparation of a defense to a malpractice action. We also conclude that our recent decision in Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (hereafter, Hill ) is dispositive in precluding plaintiff's 12th cause of action against Yamaguchi and Norcal for invasion of privacy. Plaintiff has failed to meet her initial burden under Hill of establishing that she had a reasonable expectation of privacy in the information that was disclosed during the discovery phase of her malpractice action. (See Hill, supra, 7 Cal.4th at pp. 36-37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Accordingly, we reverse the Court of Appeal judgment to the extent it concludes plaintiff has stated a cause of action under these facts.

FACTS

Our review arises out of the trial court's sustaining of defendants' demurrers to plaintiff's fourth amended complaint without leave to amend, and the Court of Appeal's reversal, in part, of the trial court judgment. We presume the facts recited in plaintiff's complaint are true and correct. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

In 1987, plaintiff was admitted to Sierra Hospital for removal of a bone spur from her left hand. Shortly after the surgery, she developed a postoperative staphylococcal infection, diagnosed and treated by Geis. As a direct result of the infection, plaintiff's third finger on her left hand had to be amputated in two separate surgeries. Both surgeries were performed by Geis, with Yamaguchi assisting. Thereafter, plaintiff dismissed Geis as her treating physician, believing his treatment of her was negligent. Yamaguchi continued to treat plaintiff for symptoms relating to the infection following the second operation. In 1988, plaintiff sued Geis for medical malpractice. Although Yamaguchi was not a party to the action, he agreed to appear as an expert defense witness on behalf of Geis.

During the discovery phase of the lawsuit, plaintiff deposed Yamaguchi, who revealed that Norcal conducted several private interviews with him (while he was still treating plaintiff), during which he discussed plaintiff's condition and prognosis and disclosed plaintiff's medical records. According to plaintiff, Yamaguchi also agreed with Norcal to testify falsely that the treatment provided to plaintiff by Geis was within the professional standard of care. Plaintiff claimed that Yamaguchi and Norcal attempted to coerce her into settling her case against Geis for significantly less than her eventual settlement of $400,000.

After settling her action against Geis, she brought the present action, claiming the disclosure Plaintiff appealed from the judgments of dismissal. In addition, plaintiff sought a writ of mandate compelling the trial court to set aside its order sustaining the demurrers of Yamaguchi without leave to amend. The Court of Appeal consolidated the appeal with the mandamus action and ultimately reversed the portion of the trial court judgment to the extent that it sustained the demurrers to the seventh and eighth causes of action against Yamaguchi and VPSMG, and the ninth cause of action against Dr. Boro (an associate of Yamaguchi and Geis, and against whom the lawsuit was dismissed after the Court of Appeal judgment became final), for wrongful disclosure of confidential medical information in violation of the act. The court also reversed the trial court's dismissal of the 12th cause of action against Norcal and Yamaguchi for breach of plaintiff's state constitutional right to privacy. The court affirmed the judgment of dismissal in favor of defendant Central California Faculty Medical Group.

[876 P.2d 1002] of her medical information violated section 56 et seq., and her constitutional right to privacy. The trial court sustained defendants' demurrers without leave to amend against all but the negligence cause of action against Yamaguchi (which was not the subject of a demurrer), on the ground that defendants' conduct was immunized by the litigation privilege of section 47, subdivision (b) (hereafter section 47(b)), which immunizes from liability all communications that occur during the course of judicial or quasi-judicial proceedings. (See Rubin v. Green (1993) 4 Cal.4th 1187, 1196, 17 Cal.Rptr.2d 828, 847 P.2d 1044 [hereafter, Rubin ] [acts related to litigation and essentially communicative, as opposed to conduct, are privileged under section 47(b) ]; Kimmel v. Goland (1990) 51 Cal.3d 202, 211, 271 Cal.Rptr. 191, 793 P.2d 524 [distinguishing between injury arising from communicative acts immunized under section 47(b) and injury arising from noncommunicative conduct unprotected by litigation privilege].)

In reversing the trial court judgment in part, the Court of Appeal observed that although the medical information obtained by Norcal from Yamaguchi may have been legally discoverable during the course of the Geis litigation, the method used to discover the information (i.e., private conversations that took place before the issuance of subpoenas and notice of depositions) violated section 56 et seq. and plaintiff's constitutional right to privacy. In so holding, the court rejected as irrelevant defendants' claims that section 56.10(c)(4) renders inapplicable the prohibition of disclosure in section 56.10.

The court also rejected defendants' claim that the actions were barred by the litigation privilege of section 47(b), which immunizes from liability publications or broadcasts made: In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law "to achieve the objects of the litigation ... [and] that have some connection ... to the action." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365 [hereafter, Silberg ].) The court concluded that the litigation privilege did not bar recovery of damages because plaintiff based her claims on defendant's conduct rather than on publication or disclosure of the information which, the court conceded, would have been barred by section 47(b). (See Rubin, supra, 4 Cal.4th at p. 1187, 17 Cal.Rptr.2d 828, 847 P.2d 1044.)

Defendants Yamaguchi and VPSMG challenge the Court of Appeal's reversal of the trial court's dismissal of the seventh and eighth causes of action for violation of section 56 et seq., and Yamaguchi and Norcal challenge the Court of Appeal's reversal of the order dismissing the twelfth cause of action for violation of plaintiff's constitutional right to privacy. The California Medical Association, California Association of Hospitals and Health Systems, California Dental Association and the County of Los Angeles and the Regents of the University of California have filed amicus curiae briefs on behalf of defendants.

DISCUSSION

1. Section 56 et seq.

Section 56 was...