McClelland v. Ozenberger, WD

• Decision Date: 22 January 1991
• Docket Number: No. WD,WD
• Parties: Kimberly McCLELLAND, Appellant, v. Larry OZENBERGER, M.D., Respondent. 43161.
• Court: Missouri Court of Appeals

Page 264

805 S.W.2d 264

Kimberly McCLELLAND, Appellant, v. Larry OZENBERGER, M.D., Respondent.

No. WD 43161.

Missouri Court of Appeals,

Western District.

Jan. 22, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 5, 1991.

Application to Transfer Denied April 9, 1991.

Arthur H. Stoup, Stephen W. Nichols, Kansas City, for appellant.

Michaela M. Warden, Nancy M. Landis, Overland Park, Kan., for respondent.

Before LOWENSTEIN, P.J., and SHANGLER and MANFORD, JJ.

LOWENSTEIN, Judge.

Appellant Kimberly McClelland (Kim) appeals from a jury verdict in favor of defendant-respondent Dr. Larry Ozenberger relieving him of liability for damages in this medical malpractice action.

Ozenberger is a family practitioner who attended Kim during her pregnancy and delivery. On December 25, 1986, Kim delivered her baby at Spelman Hospital in Smithville. Dr. Ozenberger, assisting with the delivery, performed a left mediolateral episiotomy. In this procedure, Dr. Ozenberger cut Kim's genital area to prevent adjacent tears in the birth canal when the baby's head emerged. Shortly after leaving the hospital December 28, 1986, Kim noticed she would occasionally have loose stool and drainage from her vagina. Kim never told Dr. Ozenberger about this problem, even though she saw him at her six-week check-up. It was not until she filed suit did he learn of her problem.

Kim saw George Saleh, D.O., on August 6, 1987, a physician specializing in obstetrics and gynecology. Dr. Saleh diagnosed Kim's problem as a recto-vaginal fistula, a canal connecting the rectum to the vagina. Dr. Saleh referred Kim to Dr. John Campbell, M.D., a colon/rectal surgeon.

Dr. Campbell examined Kim on August 13, 1987, and confirmed Saleh's diagnosis. On August 21, 1987, Dr. Campbell surgically removed the fistula. His post-operative diagnosis was recto-vaginal fistula, plus possible anal cryptitis and incomplete development of the anal canal with mucosal prolapse.

Plaintiff's counsel first spoke to Dr. Campbell on April 13, 1988, and then filed suit on May 3, 1988. On May 9, 1988, plaintiff's counsel asked Dr. Campbell for his opinion regarding Kim's fistula problem. Dr. Campbell responded by letter on May 23, 1988, saying "since there was (sic) apparently no muscles involved in this extension, the episiotomy evidently cut into the rectal wall and was not repaired. I think that to have a complication like this would not be unusual, but to do nothing about it is strictly poor medical practice." The full text of the letter is contained in the footnote. ¹

On July 27, 1988, Kim executed an authorization to Dr. Campbell. This authorization allowed him to release medical records to defense counsel but specifically disallowed discussions between Dr. Campbell and defense counsel. On January 6, 1989, defense counsel approached Dr. Campbell, who discussed Kim's case despite the authorization's prohibition of discussions. On May 25, 1989, defense counsel filed a motion to compel Kim to sign a medical authorization allowing not only examination of records, but also private discussions with Dr. Campbell. The following day, before the motion was ruled upon, defense counsel again spoke to Dr. Campbell about Kim's case. On June 26, 1989, after the ex parte discussions occurred, plaintiff's counsel designated Dr. Campbell as an expert witness expected to be called at trial. Defense counsel's motion to compel authorization was heard July 7, 1989. The record on this motion is unclear; it was either overruled or not ruled upon at all. Dr. Campbell was deposed October 10, 1989. Because he was absent at trial, his deposition was admitted on behalf of the defendant Dr. Ozenberger.

Kim's theory of the case was that Dr. Ozenberger either negligently cut into the roof of Kim's rectum or failed to recognize and treat the fistula at her six-week post-delivery check-up. Dr. Ozenberger's defense rested on the theory that there are a number of possible causes for Kim's recto-vaginal fistula, such as cryptitis, necrosis, or mucosal prolapse. ²

As her main point of error, the plaintiff alleges the court erred in overruling her motion to suppress the deposition of Dr. Campbell or, in the alternative, her motion in limine filed one week before trial, in that Dr. Campbell, Kim's treating physician, was incompetent to testify as a witness because he violated the physician-patient relationship set forth in § 491.060(5), RSMo (1986) when he participated in two pre-trial, ex parte, conversations with defense counsel without Kim's authorization or court order. Point II adds that the trial court erred in admitting the deposition because Dr. Campbell breached fiduciary duties to Kim. These points are consolidated.

Kim contends Dr. Campbell's opinion of her episiotomy complication changed after the ex parte discussions with defense counsel. Specifically, Kim argues that Dr. Campbell retreated from his earlier position as stated in his May letter that Dr. Ozenberger's treatment "constituted poor medical practice," supra, footnote 1. Dr. Campbell's office records note the January 6, 1989, visit with defense counsel and state: "Discussion on Kimberly: Told that epi was not a malpractice thing but probably skimmed over the crypts and glands which then resulted in the abscess & fistula." Defense counsel responds that Dr. Campbell's notes following the January 6 meeting and Dr. Campbell's October 10 deposition testimony do not reflect a change in his characterization of Kim's case. Rather, defense counsel contends that the phrase "skimming over crypts" is merely another way to express the phrase "a tiny cut or entry into the crypt." Furthermore, defense counsel maintains that Dr. Campbell used "abscess" to describe the natural history of anal cryptitis as a cause of recto-vaginal fistula. From the record, this court is unable to ascertain how much Dr. Campbell's position changed, if at all. Dr. Campbell testified at deposition that a recto-vaginal fistula is not an unusual episiotomy complication. He further stated, however, that if it does develop, then a doctor's failure to treat falls below accepted standards of medical practice. It is conceded the fistula developed just after the episiotomy.

Because the discussions between defense counsel and Dr. Campbell were ex parte, on appeal there is no record of their contents. Defense counsel claims they merely told Dr. Campbell that Kim failed to tell Dr. Ozenberger of her problem. Thus, they apparently wanted to ensure that Dr. Campbell's opinion took this alleged fact into account because they claim plaintiff's counsel, when initially discussing Kim's problem with Dr. Campbell, did not tell him that Kim never told Dr. Ozenberger about her problem.

The first real question in this case is unanswered in the law: Does an unauthorized ex parte conversation between defense counsel and the plaintiff's treating physician in a medical negligence case ipso facto render the physician incompetent to testify at trial? The answer to this issue depends on whether the physician changed his theory of diagnosis or opinion as a consequence of the ex parte conversations. If these threshold issues reveal a wrong done to the plaintiff, then the difficult task of creating a remedy remains. If the physician's testimony is deemed incompetent then the jury is precluded from hearing relevant testimony that could reveal the truth.

Section 491.060(5), RSMo 1986 provides that a physician shall be incompetent to testify "... concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe and provide treatment for such patient ..." The privilege belongs to the patient and only he may waive it. St. Louis Little Rock Hosp. Inc. v. Gaertner, 682 S.W.2d 146, 151 (Mo.App.1984). A patient waives this privilege once he places his physical condition in issue under the pleadings, "so far as information from doctors or medical and hospital records bearing on that issue is concerned." State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. banc 1968) (footnote omitted). In McNutt, defendant-relators sought a writ of mandamus to compel production of plaintiff's medical and hospital records. The court specifically held that "once the matter of plaintiff's physical condition is in issue under the pleadings, plaintiff will be considered to have waived the privilege under § 491.060(5) so far as information from doctors or medical and hospital records bearing on that issue are concerned." Kim's petition alleged two theories that Dr. Ozenberger "negligently and carelessly caused and permitted a large recto-vaginal fistula to occur ...," and that he also "negligently and carelessly failed to repair the negligently placed episiotomy incision." Dr. Ozenberger denied these allegations in his answer. Thus, Kim's physical condition became an issue, and her physician-patient privilege was waived. Kim's waiver, however, was merely partial because it does not "automatically extend[s] to every doctor or hospital record a party has had from birth regardless of the bearing or lack of bearing, as may be, on the matters in issue." McNutt v. Keet, supra, 432 S.W.2d at 602. Protective orders may be used to limit production of records to those which reasonably relate to the plaintiff's alleged injuries. Id.

The Missouri Rules did not explicitly allow or prohibit ex parte conversations with a plaintiff's physician. In this case, though, Dr. Campbell was not certified as an expert witness until after both ex parte conversations occurred. Both parties concede, though, that State ex rel. Stufflebam v. Appelquist, 694 S.W.2d 882 (Mo.App.1985), was the controlling law when the ex parte conversations occurred. Stufflebam has since been overruled by State ex rel. Woytus v. Ryan, 776 S.W.2d 389 (Mo.banc 1989).

Kim's points of error regarding the ex parte conversations raise the...