Marcus v. Superior Court

• Decision Date: 09 June 1971
• Citation: 18 Cal.App.3d 22,95 Cal.Rptr. 545
• Parties: , 74 A.L.R.3d 1051 Harold S. MARCUS et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Warren BLANK, Real Party in Interest. Civ. 38068.
• Court: California Court of Appeals Court of Appeals

Page 545

95 Cal.Rptr. 545

18 Cal.App.3d 22, 74 A.L.R.3d 1051

Harold S. MARCUS et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Warren BLANK, Real Party in Interest.

Civ. 38068.

Court of Appeal, Second District, Division 4, California.

June 9, 1971.

Hearing Denied Aug. 4, 1971.

Gibson, Dunn & Crutcher, Sherman S. Welpton, Jr., Charles S. Battles, Jr., and Bette B. Gallo, Los Angeles, for petitioners.

No appearance for respondent.

Marks, Sherman, London, Schwartz & Levenberg and Arthur Sherman, Beverly Hills, for real party in interest.

FILES, Presiding Justice.

Petitioners here are a doctor of medicine and a hospital who are defendants in a malpractice action brought against them in the superior court. They ask us to set aside a discovery order upon the ground that it violates the physician-patient privilege. We have concluded that the order is improper, that the issue is of some importance not so much to the parties as to third persons whose privacy is at stake, that an appeal would afford no remedy at all, and that a writ of prohibition is under the circumstances appropriate relief. (See Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185, 23 Cal.Rptr. 375, 373 P.2d 439.)

The parties will be referred to by their alignment in the superior court.

Plaintiff (real party in interest here) is seeking to recover damages from defendants for injuries allegedly sustained by him when the defendants performed various tests upon him. By deposition, interrogatories and a motion to produce documents, plaintiff has sought to force disclosure of the names and addresses of other persons to whom defendants gave angiographic testing. Defendants sought protective orders. After a hearing the superior court made the following order dated February 26, 1971:

'Plaintiff's Motion to Produce is denied and Defendants' Motion for a Protective Order and to quash is granted, except that Defendants DR. MARCUS and CEDARS OF LEBANON--MOUNT SINAI HOSPITALS are hereby ordered to disclose to plaintiff, by letter of their counsel, or otherwise, and within ten days of receipt of notice of this Order from Plaintiff, the names and addresses of the eight patients of DR. MARCUS receiving the same type of tests as Plaintiff, next prior to the angiogram of Plaintiff, and the names and addresses of the eight patients of DR. MARCUS receiving the same type of tests as Plaintiff, next subsequent to the angiogram of Plaintiff, including (or, if not included, then also) the names and addresses of the two patients of DR. MARCUS who developed complications from said testing.'

In defense of this order, plaintiff's counsel explains his purpose thus:

'The need for the discovery is the investigation through other patients of a type of information relayed by the Doctor to determine the veracity of the doctor as to his normal practice prior to this type of serious procedure. * * * it is Plaintiff's position that the patient, upon contact, can claim the privilege and refuse to discuss their particular matter. It is, however, Plaintiff's position that at least in the first instance discovery should permit the exposure of names and addresses for proper investigation.'

In substance, the purpose of giving plaintiff this information is to enable his investigators to seek out and interrogate Dr. Marcus' other patients and try to...