McCay v. Jones

• Citation: 354 So.2d 1095
• Decision Date: 01 February 1978
• Docket Number: No. 49779,49779
• Parties: Gerald R. McCAY et al. v. Mrs. Patsy JONES.
• Court: Mississippi Supreme Court

Page 1095

354 So.2d 1095

Gerald R. McCAY et al. v. Mrs. Patsy JONES.

No. 49779.

Supreme Court of Mississippi.

Feb. 1, 1978.

Rehearing Denied Feb. 22, 1978.

Jacobs, Griffith & Povall, Benjamin E. Griffith, L. Ellis Griffith, Cleveland, for appellant.

Sullivan, Smith, Hunt & Vickery, F. Ewin Henson, III, Clarksdale, for appellees.

Before PATTERSON, ROBERTSON and SUGG, JJ.

SUGG, Justice, for the Court:

Plaintiff, Mrs. Patsy Jones, recovered a judgment in the Circuit Court of Coahoma County against defendants, Gerald R. McCay and United Parcel Service, Inc., in the amount of $15,000 for injuries received in a collision between the vehicle which plaintiff was driving and the vehicle operated by McCay for United Parcel Service, Inc.

The two issues decided in this case do not involve the defendants' liability, but only affect the damages awarded by the jury. We affirm as to liability and reverse and remand for a trial on the issue of damages only.

I.

The first assignment of error which we consider is:

The Court erred in sustaining Appellee's motion in limine requiring Appellants not to bring two doctors and a medical records director into the courtroom during the trial in the presence of the jury.

Before trial, plaintiff filed a motion in limine in the following language:

Now comes plaintiff and moves the court prior to the trial of this cause that the court order and direct the defendant during the trial not to call as witnesses Dr. Edwin Hemness, Dr. Joe Campbell, and Mrs. Gwen Daves, Medical Records Librarian of the Northwest Mississippi Regional Medical Center.

Plaintiff would state unto the court that the testimony of such individuals is privileged under section 13-1-21 of the Mississippi Code of 1972, Annotated, and that plaintiff does not desire to waive such privilege. Plaintiff would further state unto the court that allowing the defendant to call such witnesses in order to force the plaintiff to invoke such privilege in the presence of the jury would be highly prejudicial.

The motion in limine was not considered by the court until plaintiff was cross examined by counsel for defendants and asked if she was willing for the two doctors named in the motion to testify about her condition. Plaintiff's counsel objected and, following arguments in chambers, the court sustained the motion.

After the collision in which plaintiff was injured, she was treated by four physicians, but called only one to testify in her behalf. When the court sustained the motion in limine, it prevented defendants from calling as witnesses two of the doctors who had treated plaintiff following the collision. This action of the court goes far beyond preserving the privileged communication between a physician and his patient and prevented defendants from calling two physicians who had treated her as witnesses for any purpose whatever. While section 13-1-21 Mississippi Code Annotated (Supp.1976) ¹ makes all communications between a patient and physician from whom the patient has sought professional advice privileged, it does not make the physician incompetent as a witness, but only prevents the physician from testifying as to any privileged communication. In Donaldson v. Life and Casualty Ins. of Tenn., 239 Miss. 635, 124 So.2d 701 (1960) we held that the statute does not prohibit a physician from answering a hypothetical question which does not contain any information which the physician obtained from his patient. We also held in Dabbs v. Richardson, 137 Miss. 789, 102 So. 769 (1925) that although a physician could not testify to the facts and information received by him in his professional capacity, he was competent to testify as to his knowledge concerning mental conditions derived from social or business relationships with the patient. We also held in G., M. & N. R. Co. v. Willis, 171 Miss. 732, 157 So. 899 (suggestion of error 116 So. 287) (1934) that the statute making communication between a physician and his patient privileged must be limited to its language and clear purpose, and should not be extended by construction. In Powell v. J. J. Newman Lumber Co., 174 Miss. 685, 165 So. 299 (1936) we stated:

It is true that in some cases we have held that a physician could testify as an expert to matters that he did not learn in the relation of physician and patient.

Estes v. McGehee, 133 Miss. 174, 97 So. 530; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Watkins, 142 Miss. 210, 106 So. 753. But in the case of Gulf M. & N. R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551, 552, the matter was discussed, and we supposed was clearly settled in the minds of the bench and bar that the testimony of physicians could not be admitted even in the absence of the jury, but if the matter was not privileged testimony it could be developed by examination of the witness in the absence of the jury. In that case a dentist was offered as a witness for the defendant as to the extent of injuries suffered which knocked some of his teeth loose. We there held that a dentist was not a physician, and that the statute would not be extended to include persons not within its terms, and further that there was no sufficient statement of facts expected to be developed by this witness if permitted to testify. As shown by the record, that case called for the testimony of a dentist. To a suggestion of error filed therein, Judge Griffith said as follows: 'To the rule last stated there are a few exceptions, and one of these is when a witness is tendered and it is sought to examine him upon matters which the law forbids him to disclose. For instance, the law forbids that an attorney shall disclose the knowledge which he has acquired from or for his client in and about his client's business. When an attorney is placed on the witness stand and, without his client's consent, it is attempted to interrogate him about his client's business, the witness is not only privileged to refuse to answer, it is his duty to refuse. And the offerer cannot state into the record what he expects to prove by that witness, for the law denies the right to prove by that witness anything of the matters sought to be elicited. Likewise as to a physician, upon which subject this court said in United States F. & G. Co. v. Hood, 124 Miss. 548, 571, 87 So. 115, 15 A.L.R. 605: "The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case, though it be excluded from the jury." In these cases, if the knowledge sought to be placed in the record was acquired during the existence of the relationship which makes the information privileged, then the inquiry is not permitted to proceed further than to develop the actual existence of the privileged relationship.'

It will be seen that we have distinctly held that it is not permissible to examine a physician over the objection of a patient as to matters communicated to the physician, or learned by him as the result of an examination, or communications between a physician and patient. The object of the statute is not merely to protect parties from the result of lawsuits which the evidence might affect, but the object of the statute is to permit people freely to consult physicians about their physical or mental condition, and about any treatment for any ailment they may have or think they have. (174 Miss. at 695, 696, 165 So. at 302).

In Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217 (1954) defendant called one of the physicians who had examined plaintiff. The plaintiff objected and claimed the physician-patient privilege. Counsel for defendant then stated to the court that he wanted to develop the record up to the point where objection by the plaintiff would be interposed. In the absence of the jury defendant's attorney offered to prove by the physician that he examined plaintiff on the day following the accident and continued to treat her until she had recovered. Counsel also stated that he wanted to show that the physician was available as a witness, had his records with him, and was prepared to testify as to his examinations and findings. The trial judge sustained the objection and defendant argued on appeal that he desired to use the physician as an expert witness and have him answer hypothetical questions, but this Court noted that, "No such statement was made to the trial court." Under this factual situation we held Under Section 1697, Code of 1942, all communications between physician and patient are privileged and the physician shall not be required to disclose the same in any legal proceeding except at the instance of the patient. Appellee was entitled to object to Dr. Boone's disclosing what he may have learned from his examination of her. Appellant obtained an instruction which told the jury that Mrs. Myrick could waive the statute and permit the doctor to testify either in her own behalf or as an adverse witness, and another instruction which told the jury that the defendants could not compel Dr. Boone to testify over plaintiff's objection and that the jury is warranted in inferring that his testimony would have been unfavorable to plaintiff if he had been permitted to testify. By these instructions, we think that appellant obtained all to which it was entitled in connection with the proffered testimony of the doctor. (220 Miss. at 436, 71 So.2d at 219).

The case at bar is distinguishable from Myrick because, in Myrick, the trial court was not advised that defendants wanted to question the physician about matters which were not privileged, while in this case the court was advised by the defendants that they desired to question the physicians about matters which were not privileged.

We fail to find any cases decided by us on the precise question presented here; however, the Court of Appeals of Ohio addressed this issue in Vincenzo v. Newhart, 7 Ohio App.2d 97, ...