Jorgensen v. Superior Court In and For Sonoma County

• Decision Date: 12 September 1958
• Court: California Court of Appeals Court of Appeals
• Parties: Mattie JORGENSEN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF SONOMA, Respondent. Civ. 9492.

Page 550

329 P.2d 550

163 Cal.App.2d 513

Mattie JORGENSEN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF SONOMA, Respondent.

Civ. 9492.

District Court of Appeal, Third District, California.

Sept. 12, 1958.

Hearing Denied Nov. 5, 1958.

Barbagelata, Zief & Carmazzi, San Francisco, for petitioner.

Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, Peart, Baraty & Hassard, San Francisco, James B. Shovlin, Jr., San Francisco, and Edward Dermott, Santa Rosa, for respondents.

SCHOTTKY, Justice.

This is a petition for a writ of mandate to compel the respondent to set aside its order denying an application for the pretrial inspection of a certain medical report in the possession of the attorneys for Daniel McCaskill, the defendant in a civil action initiated by the petitioner.

On May 13, 1957, petitioner filed a complaint for damages due to personal injuries resulting from the alleged medical malpractice of defendant Daniel McCaskill.

The attorneys for defendant Daniel McCaskill requested that the petitioner be examined by Dr. John Adams. On January 14, 1958, the petitioner voluntarily submitted to a physical examination by Dr. Adams, whose report was thereafter transmitted to the attorneys for defendant.

The petitioner did not receive a copy of this medical report and her request for such copy was refused by the attorneys for defendant. Petitioner then, on March 14, 1958, moved the respondent court for an order to inspect and copy this medical report. This motion was denied on March 18, 1958. A subsequent motion to vacate the respondent court's order of March 18, 1958, was likewise denied on March 28, 1958.

The motions of petitioner before the respondent court were apparently made under the authority of sections 2031 and 2032 of the Code of Civil Procedure. Section 2031 in effect permits any party, upon good cause shown, to inspect and copy and documents or other papers in the possession of any other party. Section 2032 in effect provides that where the mental or physical condition of a party is in issue the court may, upon good cause shown, order a party to submit to a physical examination. The party examined pursuant to such order is then entitled to a copy of the medical report.

It appears that the motions of the petitioner were denied solely on the ground that the medical report was privileged, the court stating: 'It is, therefore, the Court's opinion that the communications, whether they be oral or in writing, between Dr. Adams and counsel for defendant, are privileged and, therefore, not subject to inspection under Sections 2031 and 2032 of the Code of Civil Procedure.'

The respondent contends that this report is within the attorney-client privilege. It relies principally on City and County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26, 25 A.L.R.2d 1418. In that case the plaintiff brought an action against the city. To aid in preparing the suit the plaintiff's attorney caused the plaintiff to be examined by a doctor to ascertain the extent of his injuries. The defendant city sought to compel the doctor to answer certain questions. The court held that while no physician-patient privilege was present the attorney-client privilege was applicable and the doctor could not be compelled to answer. The theory of the case was that the attorney-client privilege exists in order to permit a client to communicate freely with his legal adviser without fear that such communication would later be divulged to his prejudice. In order to communicate with his attorney it may be necessary for the client to employ an agent, such as a messenger or interpreter and any communication through such an agency is likewise within the privilege. When it is necessary for the client to communicate information as to his physical condition to his attorney he may require the services of a physician. The physician is then the agent through which the communication is made and his report would be privileged. As the court there stated (37 Cal.2d at page 237, 231 P.2d at page 31): 'Thus, when communication by a client to his attorney regarding his physical or mental condition requires the assistance of a physician to interpret the client's condition to the attorney, the client may submit to an examination by the physician without fear that the latter will be compelled to reveal the information disclosed.'

Thus we see that the attorney-client privilege is to protect communications between attorney and client. When the plaintiff is examined by a physician for the purpose of informing the plaintiff's attorney as to the plaintiff's physical condition the medical report is privileged. City and County of San Francisco v. The Superior Court, supra; In re Ochse, 38 Cal.2d 230, 238 P.2d 561; State v. Kociolek, 23 N.J. 400, 129 A.2d 417.

However, when the plaintiff is examined by a physician for the purpose of informing the defendant's attorney as to the plaintiff's physical condition the circumstances are entirely different and the same rule is not applicable. It is communication between the client and his own attorney which is privileged. In the instant case the communication was by plaintiff to a physician engaged by counsel for defendants. In such a case the necessary element of attorney-client relationship is lacking and the essential feature of confidential intent in revealing information is also lacking.

Our Supreme Court has held in Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, that when a doctor selected by defendants conducts a physical examination of plaintiff, the plaintiff should be permitted to have plaintiff's attorney present during the examination. This indicates strongly that...