Moses v. McWilliams

• Court: Superior Court of Pennsylvania
• Citation: 549 A.2d 950,379 Pa.Super. 150
• Parties: Pearlena MOSES, Appellant, v. Daniel T. McWILLIAMS, Esq., Marvin Krane, M.D., and Albert Einstein Medical Center. Pearlena MOSES, Appellant, v. UNDERWRITERS ADJUSTING COMPANY.
• Decision Date: 28 September 1988

Page 950

549 A.2d 950 379 Pa.Super. 150 Pearlena MOSES, Appellant,
v.
Daniel T. McWILLIAMS, Esq., Marvin Krane, M.D., and Albert
Einstein Medical Center.
Pearlena MOSES, Appellant,
v.
UNDERWRITERS ADJUSTING COMPANY. Superior Court of Pennsylvania. Argued Sept. 16, 1987.
Filed Sept. 28, 1988.

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[379 Pa.Super. 153] William Marvin, Philadelphia, for appellant.

H. Robert Fiebach, Philadelphia, for McWilliams, appellee.

Howard M. Cyr, III, and Mark L. Parisi, Philadelphia, for Krane, appellee.

S. David Fineman, Philadelphia, for Albert Einstein Medical Center, appellee.

Before CIRILLO, President Judge, and BROSKY, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.

[379 Pa.Super. 154] MONTEMURO, Judge:

This is a consolidated appeal from four orders issued by the Philadelphia County Court of Common Pleas dismissing the complaints of appellant Pearlena Moses in two separate actions in trespass, one against appellee Underwriters' Adjusting Company (Underwriters), the other against appellees Albert Einstein Medical Center (Albert Einstein), Dr. Marvin Krane, and Daniel T. McWilliams, Esq.¹ Both cases arose from a medical malpractice action filed by appellant following a hysterectomy she underwent in the summer of 1977.

In July of 1977, appellant was admitted to the emergency room at Albert Einstein. There, an intern diagnosed her as suffering from pelvic inflammatory disease. She was released with instructions to take a prescription for antibiotics. Her condition worsened, necessitating her admission to another hospital where she came under the care of appellee Dr. Marvin Krane. On July 7, 1977, he performed a total hysterectomy on her and continued to treat her until he released her to the care of her private physician in November 1977. Appellant then brought suit against Albert Einstein Medical Center, alleging that the care she received there had been negligent and had necessitated the hysterectomy.

In the consolidated actions now before us, appellant alleges² that, in the malpractice action, Albert Einstein hired Underwriters to manage its defense of the case. Underwriters, in turn, retained appellee Daniel T. McWilliams to represent Albert Einstein. Underwriters wrote to Dr. Krane and asked that he contact its representatives to discuss appellant's medical condition. Neither appellant nor her attorney were notified of this request. Dr. Krane [379 Pa.Super. 155] complied with the request and, in conversations with both an Underwriters employee and with McWilliams, revealed information that he had gained in the course of his treatment of appellant.

Appellant claims that she first became aware of Dr. Krane's involvement in the case when her attorney was notified by Mr. McWilliams that he intended to call Dr. Krane as an expert witness at trial. Appellant's counsel informed Dr. Krane at that time that his communications with Mr. McWilliams were unauthorized and should cease immediately. Despite this injunction, Dr. Krane continued to meet with defense counsel, allowed McWilliams to review and copy portions of appellant's patient file, and testified at trial as a fact witness.³

Appellant contends that as her treating physician Dr. Krane had a duty to refrain both from taking any actions which would be adverse to her interests in the malpractice litigation and from making any disclosures to other parties of information gained in the course of his treatment of her, unless authorized to do so either by her or by law. She also alleges that Dr. Krane had knowledge of or should have known of the provisions of the Interprofessional Code, the American Medical Association Principles of Medical Ethics, and the

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Hippocratic Oath, all of which provide for the maintenance of confidentiality between physician and patient. Appellant argues that because Dr. Krane ignored these provisions, and breached the confidence gained in treating her, he should be liable in tort for breach of the physician/patient privilege. She further asserts that Albert Einstein, McWilliams and Underwriters should be liable for inducing that breach. Accordingly, our initial inquiry on appeal, a question of first impression, is whether a treating physician's unauthorized and judicially unsupervised communications with his patient's adversary in a medical malpractice action are actionable as a breach of physician/patient confidentiality. Appellant argues, first, that a general [379 Pa.Super. 156] cause of action for breach of the physician/patient confidentiality should exist; second, that a physician's judicially unsupervised and unauthorized communications with a patient's adversaries in litigation should give rise to that cause of action; and, third, that in such a context the defense of absolute privilege should not be available to the physician.⁴ Appellant's last two questions presented concern her claim for defamation and are intertwined with the physician/patient confidentiality theory. She argues that the trial court erred in granting summary judgment before depositions were concluded, and also that the appellees should not be accorded the absolute privilege defense where the patient's confidentiality rights have been breached. We affirm the trial court's orders.

We first consider appellant's claim for breach of confidentiality and do so in light of the standard applicable [379 Pa.Super. 157] for review of a judgment on the pleadings:⁵ We accept as true all well-pleaded averments of fact and will uphold the trial court's decision only "in cases which are so free from doubt that trial would clearly be a fruitless exercise." Capanna v. Travelers Insurance Co., 355 Pa.Super. 219, 226, 513 A.2d 397, 401 (1986). We find that within the narrow factual context of this case, appellant has failed to state a cause of action for breach of confidentiality. To find otherwise would undermine several well-established principles of this Commonwealth. We must keep in mind that when Dr. Krane made his disclosures, appellant had voluntarily instituted a medical malpractice action against Albert Einstein and had thereby placed in issue her medical condition. Given a patient's qualified right to privacy in his or her medical records and an individual's reduced expectation of privacy as a result of filing a civil suit for personal injuries in conjunction with policies supporting both the physician/patient privilege statute⁶ and the absolute immunity from

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civil liability granted to witnesses in judicial proceedings, we will not recognize the cause of action for breach of confidentiality as pled in this case.⁷

Appellant argues that a physician's duty to maintain confidentiality outside of formal court proceedings is based upon the fiduciary nature of the physician-patient relationship,[379 Pa.Super. 158] the constitutional right of privacy, and the ethical principles of the medical profession.

We first note that a patient's right to confidentiality is less than absolute. In order for a disclosure to be actionable at law, the disclosure must be made without legal justification or excuse. The law is replete with statutory justifications for disclosure that are deemed to outweigh the patient's right to confidentiality. For example, a physician has a duty to report otherwise confidential information relating to wounds or injuries inflicted by deadly weapons (18 Pa.C.S.S. § 5106), contagion (53 Pa.S.A. § 24663), child abuse (11 Pa.S.A. § 2204), and medical history in cases of adoption (23 Pa.C.S.A. § 2909). While the existence of reporting requirements is not controlling on the issue before us, it indicates the appropriateness of balancing the competing interests at stake when we evaluate the scope of the physician-patient privilege and the physician's duty of non-disclosure.

In In Re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980), then Chief Justice Eagen, writing for a three-judge plurality, concluded that "[d]isclosure of confidences made by a patient to a physician, or even of medical data concerning the individual patient could, under certain circumstances, pose such a serious threat to a patient's right not to have personal matters revealed that it would be impermissible under either the United States Constitution or the Pennsylvania Constitution." Id. at 149-153, 415 A.2d at 77-78. However, as evidenced by the plurality's decision not to protect from discovery the particular medical records in that case,⁸ the constitutional right to privacy concerning [379 Pa.Super. 159] medical information is qualified. In that case, the court acknowledged that there would be "a limited invasion of privacy" but considered it "justified under the circumstances." Id. at 152 n. 11, 415 A.2d at 78 n. 11. See also Denoncourt v. Commonwealth State Ethics Commission, 504 Pa. 191, 470 A.2d 945 (1983) (the constitutional right of privacy is not absolute).

Additionally, in tort law we recognize a right to privacy that is not constitutionally based. In Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), our supreme court defined the right as an "interest in not having [one's] affairs known to others." Id. at 194-98, 189 A.2d at 149-50. The invasion of privacy is actionable when there is an unreasonable and serious interference with one's privacy interest.⁹ Nonetheless,

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an individual's right to privacy is clearly qualified when that individual has filed suit for personal injuries. Forster, supra. In Forster, a plaintiff who was suing for personal injuries allegedly sustained in an automobile accident, was placed under surveillance by a private detective hired by defendant's insurance carrier. The purpose of the investigation was to record plaintiff's daily activities to ascertain the freedom of movement of her limbs. Because she felt the surveillance was invasive, plaintiff instituted suit against the detective for invasion of privacy and intentional infliction of...