Nazareth Literary and Benev. Inst. v. Stephenson

• Decision Date: 07 December 1973
• Citation: 503 S.W.2d 177
• Court: United States State Supreme Court — District of Kentucky
• Parties: NAZARETH LITERARY AND BENEVOLENT INSTITUTION, d/b/a SS. Mary & Elizabeth Hospital, et al., Petitioners, v. Honorable Raymond C. STEPHENSON, Judge, Jefferson Circuit Court, Respondent.

Page 177

503 S.W.2d 177

81 A.L.R.3d 939

NAZARETH LITERARY AND BENEVOLENT INSTITUTION, d/b/a SS. Mary & Elizabeth Hospital, et al., Petitioners, v. Honorable Raymond C. STEPHENSON, Judge, Jefferson Circuit Court, Respondent.

Court of Appeals of Kentucky.

Dec. 7, 1973.

Frank P. Doheny, Jr., Woodward, Hobson & Fulton, John T. Ballantine, Ogden, Robertson & Marshall, Louisville, for petitioners.

Ephraim K. Lawrence, Jr., Lawrence & Duvall, C. M. Leibson, Leibson, Dolt & McCarthy, Theodore L. Mussler, Jr., Murphy & Mussler, Louisville, for respondent.

REED, Justice.

The petitioners are SS. Mary and Elizabeth Hospital and three physicians who are defendants in a civil action pending in the division of the Jefferson Circuit Court over which the respondent judge presides. According to the pleadings, the plaintiff in the civil action alleges malpractice on the part of the physicians and negligence on the part of the hospital causing serious, permanent, personal injury. The controversy concerns the discoverability of several written statements received by the hospital from physician members of its staff in which reports are made about the professional activities of one of the defendant physicians.

It appears that this particular physician possessed temporary hospital staff privileges at the time of the incident which gave rise to the cause of action for personal injury. Plaintiff charged that the hospital knew or should have known that the physician was incompetent. According to the hospital, it decided to refuse to grant permanent staff privileges to this physician, but under its internal operating procedures he was entitled to a hearing before the hospital board. In anticipation of this hearing, the hospital solicited and received the statements and reports of physician members of its staff to which the request for discovery was addressed.

The trial judge directed the hospital to produce these statements despite the hospital's plea that they were not discoverable. The trial court ordered that, upon continuing failure to make the evidence available, the hospital's answer would be stricken and judgment by default would be entered against it on the issue of liability. The hospital applied to this court for an order of prohibition directed to the trial judge by the terms of which he would be forbidden to enforce this order. A judge of this court granted a temporary order of prohibition. After oral argument and consideration of the briefs filed on the issue presented, we are of the opinion that the temporary order of prohibition heretofore issued must be dissolved and a permanent order of prohibition denied for the reasons later stated herein.

It is important to note that a serious procedural question was presented at the outset. It was argued on behalf of the respondent judge that the petitioners had an adequate remedy by appeal and that in the instance presented by the record this court should adhere to its traditional position of refusing to issue an extraordinary supervisory order under the authority vested in it by Section 110 of the Constitution of Kentucky. In view of the disposition made of this application on the merits, and since all parties to the appeal agree that the issue is one of positive public interest, and in further consideration of the circumstance that the new rules of procedure for discovery became effective October 1, 1971, which represented a complete overhaul of the rules of discovery theretofore existing, we have decided to express our understanding of the applicable law in the situation presented. We adopted the same course in Wiglesworth v. Wright, Ky., 269 S.W.2d 263 (1954). Here, as in that case, there is presented a period of transition from old to new methods of practice.

The hospital's contention that the requested material is not discoverable is actually based upon two propositions: first, that the written reports really constitute the same situation as is presented by the work product of a lawyer; second, that the material sought should be regarded as privileged matter which should remain confidential because of considerations of public policy.

So far as the proposition that the reports constitute the work product of a lawyer is concerned, we have no difficulty in rejecting it out of hand. In the first place, these reports...