Kenney v. Superior Court In and For Yolo County

• Decision Date: 17 October 1967
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene W. KENNEY, M.D., Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF YOLO, Respondent. Frank CASILLAS, a Minor, by and through his Guardian ad Litem, Joe G. Casillas, Real Party in Interest. Civ. 11702, 11684.

Page 84

63 Cal.Rptr. 84

255 Cal.App.2d 106

Eugene W. KENNEY, M.D., Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF YOLO, Respondent Frank CASILLAS, a Minor, by and through his Guardian ad Litem, Joe G. Casillas, Real Party in Interest.

Civ. 11702, 11684.

Court of Appeal, Third District, California.

Oct. 17, 1967.

Peart, Hassard, Smith & Bonnington, San Francisco, Wilke, Fleury Sapunor & Hoffelt, Sacramento, for petitioner.

Morton L. W. Friedman, West Sacramento, for real party in interest.

PIERCE, Presiding Justice.

In these consolidated mandamus petitions petitioner, defendant in an action for medical malpractice, seeks to prevent discovery by plaintiff (real party in interest) of certain materials and certain information. The subjects are suitable for separate discussion.

RE SUFFICIENCY OF THE AFFIDAVIT SUPPORTING THE SUBPOENA DUCES TECUM. (NO. 11702)

As a preliminary to the taking of the deposition of the record custodian of the Yolo County Hospital plaintiff sought a subpoena duces tecum covering hospital records relating to defendant doctor. The latter moved to quash, contending insufficiency of the supporting affidavit. The trial court ordered production of a part of the records, denying plaintiff access to others. We issued an order to show cause and a stay order. After hearing argument we have concluded the trial court's order was properly made. Much of that which follows is paraphrased from Judge Warren Taylor's memorandum opinion (accomplished more easily than quotations, bracketing-in and bracketing-our).

The affidavit avers that the hospital custodian has under his control: 'All records and documents in his files, and particularly in the files of his personnel department or office, pertaining to DR. EUGENE W. KENNEY, including but not limited to: appointment papers, documents granting privileges; payroll records, retirement records; records of disciplinary proceedings; records pertaining to his status on the staff of the hospital, if any, and his removal therefrom, if any there has been.' It is stated: 'Said documents contain relevant and material evidence upon the issue of negligence of DR. KENNEY in treating and casting a fracture of the left forearm of the minor plaintiff * * *.'

Had the affidavit merely alleged that much it would state merely a legal conclusion. (McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 396, 159 P.2d 944.) It would not comply with Code of Civil Procedure section 1985 which requires that the affidavit 'set forth in full detail the materiality (of the matters and things desired to be produced) to the issues involved in the case * * *.' But the affidavit here goes on to say: 'declarant is informed and believes that on or about the dates here in question, to-wit: February 19--22, 1965, DR. KENNEY was privileged to practice at YOLO COUNTY HOSPITAL, and the said documents may lead to the discovery of relevant evidence concerning DR. KENNEY'S past experience at the said hospital; the kinds of operations he has performed there; the nature and extent of his professional privileges at the hospital; physicians and surgeons with whom he has associated in the past, and who have knowledge of his abilities; prior instances of professional misfeasance, if any; disciplinary proceedings relating to charges of misfeasance against him, and admissions he may have made therein; whether he has resigned from said hospital or been removed from the staff thereof--all of which may lead to the discovery of admissible evidence on the questions of the doctor's qualifications, background, skill, negligence in the instant case.' Also declared in the affidavit is the fact that the hospital administrator had declared there is a hospital policy against the release of its records without a court order. Thus plaintiff has no access to any of this information while defendant will either have access to it or knowledge of its contents.

A party is required to show good cause to obtain discovery under certain discovery sections of which said section 1985 of the Code of Civil Procedure is one. (Code Civ.Proc., sec. 2036; Flora Crane Service, Inc. v. Superior Court, 234 Cal.App.2d 767, 789--790, 45 Cal.Rptr. 79.)

Under section 2036 as added in 1963 (Stats.1963, ch. 1744, p. 3479, sec. 2) 'mere proof of the relevance of the information sought * * * shall not be sufficient.' Section 1985, as we have seen, speaks of 'materiality * * * to the issues involved in the case'. Both these statements, case construed, are to be governed by discovery standards, the objectives of which are 'not merely the discovery of admissible evidence, but also effective preparation for trial.' (Associated Brewers Distr. Co. v. Superior Court (1967) 65 Cal.2d 583, 587, 55 Cal.Rptr. 772, 422 P.2d 332.) Elaboration of 'effective preparation for trial' as stated in the case last cited is unnecessary to our discussion under this caption. ¹ The trial court found: '* * * Plaintiff has made a sufficient showing regarding the records of defendant's disciplinary proceedings, and the records of his status on the staff of the hospital, if any, and his removal therefrom, if any. These records, if they exist, have possible discovery value and may assist plaintiff in his preparation for trial. They are adequately described in plaintiff's affidavit * * *.' It ordered their production.

We agree with that determination. Records of disciplinary proceedings, or of the status of a doctor on a hospital staff, or of his removal therefrom, may or may not be admissible in evidence. Even if inadmissible such records may very well point the way to evidence admissible in a medical malpractice action. (Myers v. St. Francis Hospital (1966) 91 N.J.Super. 377, 220 A.2d 693, 15 A.L.R.3d 1432, at p. 1440; see notes id., pp. 1448, 1453, 1454.) True, there is indecision evidenced in plaintiff's counsel's affidavit and there was a frank admission by plaintiff's counsel at oral argument of uncertainty as to the extent of the material within the described categories under the hospital's control. (That, under the circumstances of the case, is probably inevitable.) It would be unrealistic and time consuming, however, to require plaintiff first to exhaust all discovery processes to determine precisely what the hospital Does possess fitting the prescription of the demand as a condition precedent to the issuance of the subpoena duces tecum. Production contemporaneous with the taking of the deposition of the custodian conserves time, helps speed the progress of the litigation to its ultimate trial and determination and can do no harm. The custodian of the records cannot produce that which he does not have. Neither harassment nor oppression is involved.

Authorities antedating the modern discovery laws of 1958 have held that allegations in affidavits on the basis of which the issuance of a subpoena duces tecum in connection with depositions are sought are insufficient if issued when made on information and belief. These cases are collected in Proctor & Gamble Co. v. Superior Court, 124 Cal.App.2d 157, at page 161, 268 P.2d 199. The language of Code of Civil Procedure section 1985, requiring specification of 'the exact matters or things desired' seemingly connotes a rigidity which lends sustenance to those earlier authorities. But the broadening of the scope of discovery both by statutory and case law since the enactment and original interpretation of section 1985 makes the earlier cases of little value. And, as a practical matter, how is a plaintiff ever to learn of the existence of these perhaps important sources of evidence vital to his cause except through information and belief? The aim of discovery is the ascertainment of truth--which is the aim of the court. The purpose of placement by the Legislature of the burden of showing good cause upon the party seeking information of the kind under discussion (as contemplated by Code Civ.Proc. sec. 2036, enacted in 1963; Stats.1963, ch. 1744) was to protect further ² the opposing party from unwarranted invasions of his privacy and there must be in every case a balancing between legitimate ascertainment of facts relevant and material to the issues and interference with a litigant's right of privacy. We think the trial court preserved that balance in the matter under discussion. It quashed the subpoena duces tecum 'to the extent that such subpoena requires * * * (the records custodian) to produce records and documents in his files consisting of DR. EUGENE W. KENNEY'S appointment papers, documents, granting privileges, payroll records and retirement records.' We hold that the court's order was as conservatively restricted as defendant could properly ask.

RE THE RIGHT OF PLAINTIFF TO THE NAMES, ADDRESSES ETC. OF CERTAIN EXPERTS.

Plaintiff served upon defendant a set of interrogatories. Certain of them were unanswered and plaintiff filed a notice of motion to compel responses. That motion was granted in part, denied in part.

The questions may be epitomized: defendant was asked: 1. To disclose the fact as to whether he had conferred with experts 'pertaining to any facts dealing with the medical care, treatment, prognosis, diagnosis, etc., of plaintiff * * *.' In the event of an affirmative answer further disclosure of name, address, specialization of such expert, date of contact, etc., was demanded. 2. To disclose whether any experts would be called as witnesses; if so, the same data regarding them was sought. The interrogatory also was a continuing demand; i.e., defendant was required to remember to furnish plaintiff with names and statistical data regarding potential expert witnesses not then contemplated if and when a later determination might be made to call them. 3. To disclose whether the 'factors' relating to the case had been presented to a medical committee. An affirmative answer was to involve disclosure of the dates and places of conferences, 'names and addresses...