Hogue v. Massa
| Decision Date | 20 August 1963 |
| Docket Number | 10036,Nos. 10035,s. 10035 |
| Citation | 5 A.L.R.3d 1236,80 S.D. 319,123 N.W.2d 131 |
| Parties | , 5 A.L.R.3d 1236 Welton D. HOGUE, Plaintiff and Appellant, v. L. L. MASSA, Mary Grandy Gridley, Executrix of the Estate of Jesse William Gridley, Deceased, Massa-Gridley Clinic, William A. Miller, Sturgis Community Memorial Hospital, Glenn Hanson, John Doe, and Jane Doe, Defendants and Respondents, Lorraine B. HOGUE, Plaintiff and Appellant, v. L. L. MASSA, Mary Grandy Gridley, Executrix of the Estate of Jesse William Gridley, Deceased, Massa-Gridley Clinic, William A. Miller, Sturgis Community Memorial Hospital, Glenn Hanson, John Doe, and Jane Doe, Defendants and Respondents. |
| Court | South Dakota Supreme Court |
Lynden D. Levitt, Earl L. Kellett, Rapid City, for plaintiffs and appellants.
Morrill & Morrill, Sturgis, for defendants and respondents.
These appeals concern the right to interrogate a physician without the patient's consent on matters that are privileged under the physician-patient relationship, when his deposition in a civil action, is taken before trial for the purpose of discovery. The answer depends on whether there has been a waiver of the privilege.
On Saturday, June 27, 1959, Welton D. Hogue complained of severe abdominal pains. One of the defendants, Dr. Miller, an osteopathis physician was called to his home and ordered him taken to the defendant clinic for further examinations. He was there examined by Dr. Miller and the defendant Dr. Gridley, also an osteopathic physician, who ordered him hospitalized in the defendant hospital. They diagnosed his ailment as an inflamed appendix but did not rule out the possibility it might be a bowel obstruction. In the course of surgery performed on him that evening his ailment was diagnosed as a bowel obstruction which was operated on.
After several days of apparent normal convalescence his condition worsened on Wednesday afternoon and on Saturday evening he became delirious. This continued until Monday morning when he lapsed into unconsciousness at which time Dr. Lemley, a medical doctor from Rapid City, was called to the hospital. He examined the patient in the presence of Dr. Gridley and talked with the patient's wife. Apparently these two doctors had a conversation during this examination but what was said does not appear.
In the record is a copy of the following progress note by Dr. Gridley:
'/s/ J. W. Gridley, D. O.'
The files of the defendant hospital contained the following notation:
'RECORD OF CONSULTATION
'To Dr. Ray E. Lemley In re: Patient, Barney Hogue
'Request for consultation for: Diagnosis and Management
'/s/ J. W. Gridley, D. O.
'Date: 7/6/59
'/s/ Ray E. Lemley'
The patient's wife testified Dr. Lemley was brought into the case at her suggestion when she was advised 'that he wasn't going to make it', while the defendants claim that their evidence will show that Dr. Gridley requested that Dr. Lemley be called. According to her testimony he arrived at the Sturgis hospital at 1 p. m. and the patient was in the Rapid City hospital within an hour after that. During the brief time that Dr. Lemley, Dr. Gridley and the patient were together in the Sturgis hospital no treatment or care was administered to him, but Dr. Lemley did advise his wife that he had a bowel obstruction necessitating his removal to Rapid City for emergency surgery.
After the patient's removal to Rapid City Dr. Lemley and his associate performed another operation. During his stay in this hospital he was under the care of Dr. Lemley. The defendants were not involved in his care after his removal from the Sturgis hospital. At the time of his release from the Rapid City hospital he was unable to walk or talk, apparently because of brain damage, so he was removed to the Veteran's Hospital at Ft. Meade, near Sturgis, South Dakota, for further care and treatment by the doctors there.
On June 26, 1961, Welton D. Hogue, commenced his action for damages against the defendants based on their carelessness and negligence in his care and treatment. On the same day his wife, Lorraine, instituted her action against the same defendants on the same grounds asking damages for her loss of his services, society and companionship. In both actions the plaintiffs were examined adversely under court order, and transcripts of their testimony prepared. In Mr. Hogue's action the medical records of the Rapid City hospital pertaining to his care and treatment there were on stipulation released to the defendants and he agreed to undergo a neurological and psychiatric examination by a doctor of defendants' choice.
Thereafter motions were made in both actions by the defendants to take the deposition of Dr. Lemley concerning his care and treatment of Welton D. Hogue for the purpose of discovery. These were resisted by the plaintiffs. The orders allowing these motions provided that the doctor could be examined as to matters which would be privileged under our statute. Petitions for the allowance of appeals from these intermediate orders were granted by us pursuant to SDC 1960 Supp. 33.0706.
Depositions for the purpose of discovery are authorized by SDC 1960 Supp. 36.0501. In SDC 1960 Supp. 36.0505 it is provided that on discovery the deponent may not be examined as to any matter that is privileged. The physician-patient privilege with which we are here concerned arises by reason of SDC 1960 Supp. 36.0101(3) wherein it is stated:
'A physician or surgeon, or other regular practitioner of the healing art, cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient;'
It expresses a long-standing public policy to encourage uninhibited communication between a physician and his patient. In the Territorial Revised Code of 1877 it appears as Sec. 499(3) of the Code of Civil Procedure. The present law is the same except that its inhibitions have been extended to any 'other regular practitioner[s] of the healing art.' In promulgating Section 499, the legislature declared: 'There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate;'.
In granting defendants' application to examine Dr. Lemley the trial court was of the view that Mr. Hogue had waived the privilege afforded him by this statute. His right to waive the protection of the statute seems unrestricted by any provision of public policy but there is conflict in the cases as to what constitutes a waiver. Some courts favor a strict construction of the statute on the theory it is in derogation of the common law while most courts say that such statutes are remedial and should be liberally construed to carry out their policy. The differing results arrived at are often accounted for by the theory of construction applied. The courts committed to the rule of liberal construction are more inclined to protect the privilege than are those where the other rule prevails. This court apparently aligned itself with the jurisdictions which favor the strict construction of these statutes. In re Golder's Estate, 37 S.D. 397, 158 N.W. 734, 735.
In discussing the incompetence of a doctor as a witness under the statute in that case it wrote: In this the court was in error. The opinion makes no mention of Sec. 2472, C.C. of 1903 which provided: This provision now appears as SDC 65.0202(1). Consequently we must overrule the language quoted from the Golder's Estate case. In obedience to this legislative mandate it is our duty to effectuate the purposes of the statute. In other words, it is to be liberally construed in favor of the patient.
The only legislative enactment in our law concerning the waiver of the privilege, which obviously has no application here since Mr. Hogue has not offered himself as a witness, is contained in SDC 1960 Supp. 36.0102. That section provides:
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