Hetter v. Eighth Judicial Dist. Court of State In and For County of Clark, 23453

• Citation: 110 Nev. 513,874 P.2d 762
• Decision Date: 19 May 1994
• Docket Number: No. 23453,23453
• Parties: Gregory HETTER, M.D., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, IN AND FOR the COUNTY OF CLARK, and the Honorable Lee Gates, District Judge, Respondent, Margaret Sanchez, Real Party in Interest.
• Court: Supreme Court of Nevada

Page 762

874 P.2d 762

110 Nev. 513

Gregory HETTER, M.D., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, IN AND FOR the COUNTY OF CLARK, and the Honorable

Lee Gates, District Judge, Respondent,

Margaret Sanchez, Real Party in Interest.

No. 23453.

Supreme Court of Nevada.

May 19, 1994.

Pearson & Patton, Las Vegas, for petitioner.

Louis P. Sanchez, Las Vegas, for real party in interest.

OPINION

SHEARING, Justice.

This petition for a writ of mandamus or prohibition challenges a discovery order of the district court.

Real Party in Interest, Margaret Sanchez ("Sanchez") filed a complaint for invasion of privacy and for violation of her right of publicity under NRS 598.980-.988 against her plastic surgeon ("Hetter") for using her before-and-after pictures on brochures without her consent. Hetter alleges that Sanchez consented to the publication in return for which he reduced the cost of her second surgery. In discovery proceedings the district court ordered that the plastic surgeon provide his attorney with a list of his former and present patients since September 1990. The order required the attorney to send a letter to these patients stating "the nature of the case" and asking them to call the attorney "if they recall the subject publications." The order also required the attorney to submit the patient list to the court for in camera verification that the letters were mailed. The district court also ordered that Hetter disclose to plaintiff "that portion of his tax returns which show[s] the profits and losses of his medical practice."

Hetter then filed this petition for relief, challenging the orders on the ground of physician-patient privilege and lack of relevancy.

Generally, extraordinary writs are not available to review discovery orders. Clark County Liquor v. Clark, 102 Nev. 654, 659, 730 P.2d 443, 447 (1986). However, writs have issued to prevent improper discovery in two situations where disclosure would cause irreparable injury: (1) blanket discovery orders without regard to relevance and (2) discovery orders requiring disclosure of privileged information. Id. The discovery order in this case involves both of these issues.

This discovery order seeks to intrude into one of the most private areas of a person's existence--his relationship with his doctor. The privacy of this relationship has been recognized in our law. NRS 49.225 states:

General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among himself, his doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient's family.

Both the physicians and the courts are obligated to respect this privilege, unless there are overriding public policy considerations.

Statutes giving a privilege to communications between physicians and their patients are intended to inspire confidence in the patient and to encourage him to make a full disclosure to the physician as to his symptoms and condition by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient. The patient should be able to rest assured with the knowledge that the law recognizes the communication as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by subsequent disclosure. 81 Am.Jur.2d Witnesses § 438 (1992) (with cases cited therein). The rules of evidence governing privileged matters at trial also govern such matters when they arise during discovery, and whenever a claim of privilege would be proper at trial, it is proper at the discovery stage. See Clark County Liquor, 102 Nev. at 659-60, 730 P.2d at 447.

The disclosure of a patient's name does not necessarily violate the doctor-patient privilege. However, when the circumstances are such that the nature of the problem or treatment is disclosed by disclosure of the name, the name is also privileged. Marcus v. Superior Court, 18 Cal.App.3d 22, 95 Cal.Rptr. 545 (1972). Certainly here we know that the disclosure of a patient's name discloses that plastic surgery is involved. Most people (as even Sanchez admits) would regard the fact that they had or are considering a facelift, a hair transplant or a breast augmentation as a confidential matter they would not want disclosed.

In the context of malpractice suits, the courts considering the issue have uniformly held that the names of other patients to whom the physician has given similar treatment may not be obtained through discovery. Dag E. Ytreberg, Annotation, Discovery, In Medical Malpractice Action, Of Names Of Other Patients To Whom Defendant Has Given Treatment Similar To That Allegedly Injuring Plaintiff, 74 A.L.R.3d 1055 (1976). In a malpractice case a compelling argument may be made that the names of other patients treated for similar conditions are highly relevant, but the courts have consistently refused to allow disclosure of the names of those patients, giving priority to the doctor-patient privilege. In Marcus, the court rejected the argument that discovery of the names should be allowed because patients are still free to invoke the privilege not to discuss the matter. 18 Cal.App.3d at 25, 95 Cal.Rptr. 545. Sanchez makes a similar argument that the other patients' participation in any subsequent discussion is voluntary. This does not obviate the fact that confidential information about the patients would already have been disclosed to the attorney and to the court in violation of the patients' privilege and that the patients receiving the brochure would have lost confidence in the discretion of their doctor.

The only issue on which the patient information could conceivably be relevant is on the issue of damages. Sanchez alleges that she is entitled to the profits that Hetter obtained by the unauthorized use of her picture on the theory of unjust enrichment. The two causes of action Sanchez alleges are invasion of her common law right of privacy and her right of publicity under NRS 597.810 (formerly NRS 598.988).

This court has recently offered some guidance on these causes of action, including damages available, as they are recognized in Nevada. PETA v. Berosini, 110 Nev. 78, 867 P.2d 1121 (1994). In PETA this court recognized the four torts of privacy set forth in Restatement (Second) of Torts § 652A as follows:

The four species of privacy tort are: 1) unreasonable intrusion upon the seclusion of another; 2) appropriation of the name or likeness of another; 3) unreasonable publicity given to private facts; and 4) publicity unreasonably placing another in a false light before the public.

110 Nev. at 92-93, 867 P.2d at 1130. Sanchez's allegations clearly fall within the category of "appropriation of the name or likeness of another." Id. At least that is the basis for Sanchez's claim that she is entitled to Hetter's profits from each of the surgeries he performed as a result of his patients' seeing Sanchez's picture.

Recognizing the confusion that has surrounded this tort, this court in PETA described and clarified it as follows:

The common law appropriation tort ordinarily involves the unwanted and unpermitted use of the name or likeness of an ordinary, uncelebrated person for advertising or other such commercial purposes, although it is possible that the appropriation tort might arise from the misuse of another's name for purposes not involving strictly monetary gain.... The appropriation tort seeks to protect an individual's personal interest in privacy; the personal injury is measured in terms of the mental anguish that results from the appropriation of an ordinary individual's identity.

... [t]he invasion of privacy ... is a personal injury, an injury that is redressable by general damages for the mental anguish and embarrassment suffered by reason of the unwanted public use of the private person's name.

110 Nev. at 100-101, 867 P.2d at 1134-1135.

Clearly, under this tort, Sanchez's damages are totally unrelated to any information she may glean from Hetter's other patients. The damages are personal to her, reflecting the effect on...