Mattison v. Poulen, 260-74
| Decision Date | 04 February 1976 |
| Docket Number | No. 260-74,260-74 |
| Court | Vermont Supreme Court |
| Parties | Jesse L. MATTISON v. Robert A. POULEN and the State of Vermont. |
Bloomer & Bloomer, Rutland, for plaintiff.
Joseph H. Badgewick and Allan R. Keyes, Ryan Smith & Carbine, Ltd., Rutland, for Poulen and State.
Glenn A. Jarrett, Downs, Rachlin & Martin, St. Johnsbury, for Poulen.
Before BARNEY, C. J., SMITH, DALEY and LARROW, JJ., and SHANGRAW, C. J., (Ret.), Specially Assigned.
Plaintiff's appeal comes to this Court by way of an appeal from an October, 1974, interlocutory discovery order of the Bennington Superior Court favorable to the defendants. The motion for permission to appeal was denied by the trial court, but granted by this Court on December 12, 1974. The action below is based upon a claim by the plaintiff for damages as a result of an automobile accident on the Richville Road, in Manchester, Vermont, which the plaintiff complains was caused by the negligence of the defendants.
The plaintiff states that the general questions of law presented here are whether 12 V.S.A. § 1612 applies not only to the physician disclosing information about the patient but also: (1) whether or not the physician's reports to the patient are privileged; (2) whether or not the physician's reports to the patient's attorney are privileged; (3) whether or not the physician's statements to his patient are privileged (4) whether or not the patient-plaintiff can be compelled to state under oath, under penalty of perjury, as to what his physician will testify in connection with the alleged injury; (5) whether any party may be required to obtain information which he does not have or have access to and make the same available to the other party. The last question raised we regard as separate and distinct from the privilege issues raised in the other questions of law submitted.
12 V.S.A. § 1612 is entitled 'Patients' privilege'. In subsection (a), it states, and we quote:
Unless the patient waives the privilege or unless the privilege is waived by an express provision of law, a person authorized to practice medicine or dentistry, or a registered professional or licensed practical nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.
This section of the statutes was enacted in the adjourned session of the Vermont General Assembly in 1973, with an effective date of July 1, 1974.
The record of the case before us discloses that the complaint of the plaintiff, the answers and counterclaims of the defendants, the propounding of the interrogatories which are in question here, as well as the answers to them by the plaintiff had all occurred before the effective date of the enactment.
The threshold question presented then is whether or not the plaintiff was entitled to whatever privileges would be granted to him by 12 V.S.A. § 1612. In deciding this question, we must be guided by the law as set forth in 1 V.S.A. § 213:
Acts of the general assembly, except acts regulating practice in court, relating to the competency of witnesses or to amendments of process or pleading, shall not affect a suit begun or pending at the time of their passage.
Unless the provisions of 1 V.S.A. § 213 allow a retroactive application of 12 V.S.A. § 1612, the privilege sought by the plaintiff would be barred for the reason that the suit brought by him was prior to the effective date of 12 V.S.A. § 1612.
The case of Murray v. Mattison, 63 Vt. 479, 21 A. 532 (1891) stated, relating to a similar statute, '(a)nd as a rule of construction, the law is, that when a new enactment deals with practice and procedure only, it applies to all action, unless otherwise expressed, whether commenced before or after its passage. Id. at 480, 21 A. at 532.
The same reasoning must be applied here to the exception in 1 V.S.A. § 213 relating to the competency of witnesses. Smith v. Jones, 68 Vt. 132, 134, 34 A. 424 (1896). The practical effect of 12 V.S.A. § 1612 is to make doctors or other professional people named in the section incompetent witnesses upon certain matters unless such privilege is waived. Such privilege applies to all actions, whether commenced before or after the effective date of the statute. Contrary to the opinion of the trial court, a plain reading of the statute, as well as its heading, makes it abundantly clear that the waiving of the privilege is within the province of the patient, rather than the doctor.
The plaintiff now concedes here, however, that by the bringing of his action and putting in issue the various injuries that the claims to have received as a result of the negligence of the defendants he has waived any privilege he may have had under the provisions of 12 V.S.A. § 1612 in regard to the injuries of which he has complained.
We agree that, by bringing an action for damages arising from the injuries the plaintiff claims to have suffered, the privilege is waived.
A shrinking from the embarrassment which comes from exposure of bodily disease or abnormality is human and natural. It is arguable that legal protection from such exposure is justified to encourage frankness in consulting physicians. But it is neither human, natural, nor understandable to claim protection from exposure by asserting a privilege for communications to doctors, at the very same time when the patient is parading before the public the mental or physicial condition as to which he consulted the doctor, by bringing an action for damages arising from from such condition. This in the oft-repeated phrase is to make the privilege not a shield only, but a sword.
C. McCormick, Law of Evidence § 103, at 222 (2d ed. E. Cleary ed. 1972).
It must necessarily follow that the portion of the order below requiring the plaintiff to answer the interrogatories concerning the injuries complained of caused by the alleged accident which is the subject of the action is affirmed.
The next question presente dis whether the waiver as to privilege admitted by the plaintiff extends not only to the confidential information communicated for the purpose of medical treatment after the accident, but to all matters relevant under V.R.C.P. 26(b)(1) to the matters involved here.
V.R.C.P. 26(b)(1) provides:
In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and...
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...contained in V.R.E. 503(d)(3) is intended to "carr[y] forward the Court's interpretation of 12 V.S.A. § 1612 in Mattison v. Poulen, 134 Vt. 158, 163, 353 A.2d 327, 330 (1976), that the privilege is waived by the commencement of the action not only as to the actual condition in suit but as t......
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...T. McCormick, Law of Evidence § 103 (2d ed. E. Cleary ed. 1972), (quoted and adopted by the Vermont Supreme Court in Mattison v. Poulen, 353 A.2d 327, 330 (Vt. 1976)). See also 8 John H. Wigmore, Wigmore on Evidence 2389 (McNaughton ed. 1961) ("The whole reason for the privilege is the pati......