Randa v. Bear, 33909

• Citation: 312 P.2d 640,50 Wn.2d 415
• Decision Date: 13 June 1957
• Docket Number: No. 33909,33909
• Parties: G. RANDA, Respondent, v. Ann BEAR, Respondent, Grays Harbor County Medical Service Bureau, a corporation, Appellant.
• Court: Washington Supreme Court

Page 415

50 Wn.2d 415

312 P.2d 640

G. RANDA, Respondent, v. Ann BEAR, Respondent Grays Harbor County Medical Service Bureau, a corporation, Appellant.

No. 33909.

Supreme Court of Washington, Department 2.

June 13, 1957.

Lester T. Parker, Aberdeen, for appellant.

Donn F. Lawwill, Clark W. Adams, Aberdeen, for respondent.

DONWORTH, Justice.

The principal question in this case is the proper interpretation of RCW 5.60.060(4) as applied to an insured under a medical service contract. The applicable portion of the statute reads:

'The following persons shall not be examined as witnesses:

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'(4) A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient.'

This action was instituted by the assignee of the corporation which owns and operates St. Joseph hospital in Aberdeen to recover for hospital services rendered Mrs. Ann Lee Bear between November 19, 1953, and September 21, 1954, in the amount of $1,564.80 (less $10 paid on account).

Mrs. Bear (herein referred to as respondent), upon her application, was granted permission to join the Grays Harbor Medical Service Bureau (herein called appellant) as cross-defendant.

In her answer, respondent admitted all the allegations of the complaint except that she alleged that the correct amount owing by her was $1,542.80. For her cause of action against appellant, respondent alleged the issuance by appellant of a medical and hospital service contract wherein it agreed to furnish her, at its own expense, with medical, surgical, and hospital care. She further alleged that appellant had refused to pay for the professional services of her physician, performed while she was confined in St. Joseph hospital, on two grounds: (1) That her physical condition for which the services were rendered pre-existed the time the contract was entered into; and (2) that she had received treatment for the same physical condition for more than six months.

When the case went to trial, respondent requested that these allegations as to the grounds for appellant's refusal to pay her claim be stricken. Her request was granted.

Respondent prayed that, if any judgment should be recovered against her by the assignee of the hospital, she have judgment over against appellant.

Appellant's answer to cross-complaint (including a trial amendment) admitted the execution of the service contract and respondent's hospitalization, and affirmatively pleaded the two applicable provisions of the contract referred to above as relieving it from liability.

At the commencement of the trial, it was stipulated by all three parties in open court that the hospital services rendered respondent were necessary, that they were performed, and that the amounts charged therefor were reasonable. It appears to be conceded that the service contract which was executed by appellant and Grays Harbor Public Utility District No. 1 afforded coverage to respondent as one of its employees.

Thus the factual issues presented to the trial court were limited to whether respondent was barred from recovering on the service contract either because her hospitalization was necessitated by a physical condition for which she had already received more than six months' treatment, or because such condition ante-dated the execution of the contract.

From the judgment rendered against it in the sum of $1,522.30, appellant has appealed to this court and has set forth nine assignments of error, the first five of which are:

'1. The court erred in refusing to permit appellant to question respondent, Ann Bear, with reference to her prior hospital treatments and the treatment for which this action is brought.

'2. The court erred in refusing to permit respondent's doctor to testify with reference to her prior treatment, and with reference to the hospital treatment for which this action is brought.

'3. The court erred in refusing to permit the witness, John Niles, (appellant's manager) to testify with reference to appellant's records relating to prior treatment of appellant for which appellant had paid.

'4. The court erred in refusing to admit the hospital records showing medical treatment for the respondent, Ann Bear.

'5. The court erred in denying appellant's motion for judgment and in the alternative for a new trial.'

While respondent was testifying as an adverse witness, she was asked by appellant's counsel whether, when she consulted her physician in June, 1953, he told her that she had high blood pressure. Her counsel objected on the ground that any conversation between respondent and her physician was privileged. The trial court sustained the objection, saying:

'The Court: (Interrupting) The Court will rule that it is a privileged communication.'

After the matter was argued by counsel at length, the court adhered to its ruling, and appellant's counsel made the following offer of proof:

'Mr. Parker: I offer to question this witness as to whether or not she was not treated for hypertension on the 14th day of May, 1948, on the 6th day of July, 1948, on the 6th day of September, no, of August, 1948, on the 21st day of September, 1948, on the 26th day of October, 1948, on the 21st day of December, 1948, on the 28th day of February, 1949, on the 15th day of March, 1949, on the 20th day of September, 1949, on the 10th day of July, 1950, on the 16th day of August, 1950, on the 15th day of December, 1950, on the 28th day of January, 1952, on the 11th day of December, 1951, on the 31st day of January, 1952, on the 29th day of January, 1952, on the 11th day of, on the 11th, 21, 26th days of February, 1952, on the 11th day of March, 1952, on the 27th day of June, 1952, and that bills were presented to the Medical Service Bureau for her condition on the 6th day of June, 1952 (1953), which----* * *

'Mr. Parker: 1953, which is included in this action, and was denied by the Medical Service Bureau, at which time she signed a waiver, which is shown by Defendant's Identification 3, which has been offered in evidence and rejected.'

Identification 3 is a bill for $5 submitted to appellant for services rendered respondent by her physician during June, 1953. It is signed on its face both by respondent and her physician. It contains the following:

'Diagnosis--arterial hypertension cardiac disease (valvular).'

On the reverse side is a printed form, signed by respondent, reading as follows:

'I hereby expressly authorize any physician or hospital to disclose to Grays Harbor County Medical Service Corp. any information obtained by having attended me or hereafter attending or examining me, and I understand that Grays Harbor County Medical Service Corp. will not disclose any information so obtained. Signed Mrs. Ann Bear.'

Just before this offer of proof was made, respondent had identified her signature on each side of Identification 3, but claimed that the diagnosis appearing on the face of the bill was placed there after she had signed below it. The court ruled that the proffered exhibit was inadmissible, and that appellant was barred by the physician-patient privilege from attempting to elicit from respondent testimony as to her previous treatment for hypertension (high blood pressure).

Appellant offered to prove, by the testimony of the doctor who had attended respondent during the illness which lead to this suit, that the illness (a stroke) was the direct result of hypertension; that the physician had treated her earlier for the same condition; and that before she suffered the stroke she had received more than six months' treatment at appellant's expense for the same condition. Appellant also offered to prove, by the testimony of another physician, that respondent had been treated for hypertension in 1952, before she became a party to the medical service contract. Both offers were rejected by the court on the ground that the proffered testimony was privileged under the statute quoted above.

Appellant also attempted to introduce records of the St. Joseph hospital, and to prove, by its own records, that respondent had been treated for the same illness for more than six months before she was hospitalized. This evidence was excluded by the court on the ground that it necessarily contained privileged information supplied by the attending physicians.

Because of the court's rulings, appellant was unable to introduce any evidence whatever to support its defense that respondent's illness fell within two exclusionary provisions of the medical service contract above referred to.

We must therefore decide two questions: (1) Whether the evidence offered by appellant was of the type ordinarily privileged under the statute, and (2) if it were, whether it should nevertheless have been admitted on the ground that respondent had waived the privilege.

At common law, communications between a physician and his patient were not privileged. Therefore, the statute creating the privilege, being in derogation of the common law, should be construed strictly. On its face, the statute merely provides that a physician shall not be compelled to reveal, without the consent of his patient, information acquired in professionally attending the patient. However, courts have broadened the privilege by interpreting as prohibiting the questioning of the patient about communications between him and the physician. 58 Am.Jur. 235, Witnesses, § 408, and cases cited. The privilege applies to all information acquired by the physician for the purpose of enabling him to treat the patient, including that which he learns from observation as well as through communication with him. Wesseler v. Great Northern Railway Co., 1916, 90 Wash. 234, 155 P. 1063, 157 P. 461. The privilege also extends to X-ray photographs made at the physician's direction and to hospital records containing information supplied by...