Osterman v. Ehrenworth

• Citation: 256 A.2d 123,106 N.J.Super. 515
• Parties: Annie OSTERMAN and Peter Osterman, Plaintiffs, v. Lionel EHRENWORTH, Defendant.
• Decision Date: 15 July 1969
• Court: Superior Court of New Jersey

Page 515

106 N.J.Super. 515

256 A.2d 123

Annie OSTERMAN and Peter Osterman, Plaintiffs, v. Lionel EHRENWORTH, Defendant.

Superior Court of New Jersey Law Division.

Argued April 9, 1969.

Decided July 15, 1969.

David R. Simon, Newark, for plaintiffs (Simon & Allen, Newark, attorneys, George L. Seltzer, Newark, on the brief).

Richard M. Icklan, Jersey City, for defendant (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

WEIDENBURNER, J.S.C.

This is a medical malpractice action in which the defendant-physician objects to answering certain interrogatories on the ground that the answers sought would be in violation of the patient-physician privilege recently created by L.1968, c. 185 (N.J.S. 2A:84A--22.1 et seq., N.J.S.A.).

The complaint alleges that the defendant negligently prescribed the drug prednisone for the treatment of an arthritic condition in plaintiff's legs. Plaintiff served the defendant with interrogatories. When defendant did not respond to the interrogatories now in question, plaintiff moved to strike defendant's answer and direct a trial as to damages only. The interrogatories under attack are the following:

'14. Has defendant ever previously utilized prednisone in the treatment of arthritis or any other illness, disease or symptom? If yes, state (a) the names and addresses of all those so treated, (b) the illness, symptom or disease for which they were treated, (c) defendant's reasons for utilizing prednisone in such treatment, (d) the length of time for which prednisone was prescribed, (e) whether such persons are still under defendant's care.

15. If the answer to question 14(e) is no with regard to any person, state the name and address of each such person or persons, together with the date and reason that treatment was discontinued.

16. If the answer to question 14(e) is yes with regard to any person but prednisone is no longer used in the treatment of such person or persons, state the name and address of each of such patients, together with the date and reasons that the use of prednisone was discontinued.

19. If question 17 (inquiring as to whether it was defendant's practice to treat all patients exhibiting the same symptoms as the plaintiff with prednisone) is answered in the negative, state the names and addresses of at least three patients exhibiting symptoms similar to plaintiff Annie Osterman's, for whom defendant did not prescribe prednisone, and state why said drug was not used. (Parentheses supplied).

20. Has defendant ever prescribed prednisone for any person other than plaintiff Annie Osterman, where such prescriptions were renewed continuously for three years or longer?

21. If question 20 is answered in the affirmative, state (a) the names and addresses of all those so treated, and (b) the length of such treatment.

22. If the answer to question 20 is no, state (a) the longest length of time for which defendant continuously prescribed prednisone, (b) the name and address of each such patient or patients, and (c) the length of such treatment.

50. Has defendant ever prescribed prednisone for any patient other than plaintiff Annie Osterman, to be taken more than 7 tablets per day? If so, state the names and addresses of each such patient and length of time such treatment was continued.

51. Had defendant knowledge, during the course of his treatment or thereafter, of any other physician who has prescribed prednisone in dosages exceeding 7 tablets per day? If so, state the names and addresses of each such physician, the dosage defendant understood them to prescribe, and the length of time such treatment was continued.'

At common law and prior to 1968 New Jersey did not formally recognize a patient-physician privilege. Hague v. Williams, 37 N.J. 328, 334--335, 181 A.2d 345 (1962) and cases and authorities there cited.

Prior to the legislative recognition of the patient-physician privilege in this State (N.J.S. 2A:84A--22.1 et seq., N.J.S.A., Supra), however, our highest courts compelled disclosure of information relating to a patient's health, which was received or obtained in the course of the patient-physician relationship, without the patient's consent, only where the public interest or the patient's private interest required it. Hague v. Williams, Supra, p. 336, 181 A.2d 345; Myers v. St. Francis Hospital, 91 N.J.Super. 377, 386--387, 220 A.2d 693, 15 A.L.R.3d 1432 (App.Div.1966).

In Hague the plaintiffs sued the defendant-physician for medical malpractice. Defendant prevailed in the trial court and on appeal the question was stated to be:

'* * * whether there exists a duty which defendant allegedly breached, I.e., whether the knowledge of the child-patient's pathological condition obtained by defendant physician in the course of consultation or treatment is of such a confidential nature that the physician is barred from an extrajudicial disclosure thereof, absent plaintiffs' consent.' (Hague v. Williams, Supra, p. 332, 181 A.2d p. 347).

The court in the cited case held that the physician might disclose the information possessed by him concerning the physical condition of the patient to a person with a legitimate interest in the patient's health where the physical condition of the patient is made an element of a claim. At the same time the court recognized the limited right of the patient against disclosure in the absence of a statutory patient-physician privilege in the following language:

'A patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property. Only thus can the purpose of the relationship be fulfilled. So here, when the plaintiffs contracted with defendant for services to be performed for their infant child, he was under a general duty not to disclose frivolously the information received from them, or from an examination of the patient.

This is not to say that the patient enjoys an absolute right, but rather that he possesses a limited right against such disclosure, subject to exceptions prompted by the supervening interest of society. We conclude, therefore, that ordinarily a physician receives information relating to a patient's health in a confidential capacity and should not disclose such information without the patient's consent, except where the public interest or the private interest of the patient so demands. Without delineating the precise outer contours of the exceptions, it may generally be said that disclosure may, under such compelling circumstances, be made to a person with a legitimate interest in the patient's health. See 43 Minn.L.Rev., Supra, 960; 8 Wigmore, Supra, 856. One of these exceptions arises where, as here, the physical condition of the patient is made an element of a claim. While that claim had not yet been pressed to litigation, the same policy which during litigation permits, even demands, disclosure of information acquired during the course of the physician-patient relationship allows the disclosure thereof to the person against whom the claim is made, when recovery is sought prior to or without suit.

At this point the public interest in an honest and just result assumes dominance over the individual's right of nondisclosure. (Hague v. Williams, Supra, p. 336 (181 A.2d 345)).'

In Myers v. St. Francis Hospital, Supra, pp. 386--387, 220 A.2d p. 698, it was held that interrogatories directed to a defendant-physician in a malpractice action asking 'the number of occasions he treated conditions similar to infant plaintiff's, inducing him to perform an exchange transfusion, and the name, address, date and factual account of every patient for whom he performed an exchange transfusion in the preceding two years' must be answered to enable the plaintiff 'to cross-examine the doctor with respect to his qualifications and experience' and on his represented status as a specialist in the treatment of infant children.

The general question presented for decision here is whether the new statutory patient-physician privilege has effected any change in our prior decisional law, and, specifically, whether the newly-enacted privilege permits a physician, without the consent of a patient who is not a party to litigation, to respond to interrogatories which would reveal the identity of the non-party patient, the ailment for which he was treated, and the details and duration of such treatment.

The research of counsel and the Court has not disclosed any decisions on the question involved subsequent to New Jersey's legislative enactment of the patient-physician privilege. Although it is recognized that, as a general rule, a trial court is under a duty to follow the law as enunciated by courts of superior authority (Fox v. Bd. of Ed. of West Milford Tp., 93 N.J.Super. 544, 557--558, 226 A.2d 471 (Law Div.1967) and cases there cited), a trial court cannot ignore a subsequent legislative enactment which represents an expressed public policy (Cf. McGrath v. Jersey City, 70 N.J.Super. 143, 148, 175 A.2d 278 (Law Div.1961), affirmed 38 N.J. 31, 183 A.2d 7 (1962); Hague v. Williams, Supra, p. 335, 181 A.2d 345), if litigants are to enjoy the right to expect the judiciary to have issues before it 'met and decided when presented.' Ridgefield Park v. Bergen Co. Bd. of Taxation, 31 N.J. 420, 426, 157 A.2d 829 (1960). In this forum, as in courts of higher authority, action and decision 'is inescapable' (Ibid.) where legislative expression of public policy may have effected a change in the law of the State. Cf. 21 C.J.S. Courts § 187, p. 304.

This Court, therefore, proceeds to determine what effect, if any, the statute has on the principles enunciated in our prior decisional law.

N.J.S. 2A:84A--22.2, N.J.S.A. provides in pertinent part as follows:

'Except as otherwise provided in this act, a person, whether or not a party, has a privilege in a civil action * * * to refuse to disclose, and to prevent a witness from disclosing, a...