Roosevelt Hotel Ltd. Partnership v. Sweeney

Citation394 N.W.2d 353
Decision Date15 October 1986
Docket NumberNo. 85-1597,85-1597
PartiesROOSEVELT HOTEL LIMITED PARTNERSHIP, Plaintiff, v. David SWEENEY and Michael McNamara, d/b/a R Place; Douglas M. Ihde, d/b/a Werni's Tap; Joseph Hartwig, Karen P. Ackmann, and Wade A. Usher, Defendants. Kimberly H. BROWNING, Matthew L. Browning, and Samuel L. Browning, A Minor Child by his Mother, Kimberly H. Browning, Appellees, v. David SWEENEY and Michael McNamara, d/b/a R Place Lounge; Douglas M. Ihde; d/b/a Werni's Tap, Defendants, Joseph Hartwig, Karen P. Ackmann, and Wade A. Usher, Appellants.
CourtUnited States State Supreme Court of Iowa

John M. Bickel and Diane Kutzko of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for appellant Karen P. Ackmann.

James M. Powers of Hines, Pence, Jackson, Day & Powers, Cedar Rapids, for appellant Joseph Hartwig.

Thomas Read of Crawford, Sullivan, Read & Roemerman, Cedar Rapids, for appellant Wade A. Usher.

Lloyd E. Humphreys of Humphreys & Associates Law Firm, P.C., Cedar Rapids, for appellees.

Considered by REYNOLDSON, C.J., and LARSON, SCHULTZ, WOLLE and NEUMAN, JJ.

SCHULTZ, Justice.

The issue in this case is whether a defendant in a personal injury action may, through a court order, force the plaintiff to execute a patient's waiver authorizing defendant's counsel to communicate privately with and obtain medical information relevant to plaintiff's personal injury action from various health care providers. The plaintiff concedes that by bringing the action for her injuries she has waived her statutory physician-patient privilege as it relates to the condition alleged. She maintains, however, that her action for injuries does not waive the confidential nature of her earlier medical history and that she has a right to be present to protect this interest and should not be compelled to waive this right. The trial court denied a motion to compel the plaintiff to execute such a waiver. We granted movant's application for interlocutory appeal. We affirm.

The pleadings reveal that two court actions were filed by separate plaintiffs against the same defendants, alleging a cause of action that arose from the same automobile accident. The district court consolidated these cases; however, the present appeal involves only one case. The only allegation of fact germane to this appeal is plaintiff Kimberly H. Browning's claim of injury caused by the accident. We shall refer to the defendants in Browning's suit as the defendant.

After the institution of the action, defendant moved the court for an order requiring Kimberly H. Browning to execute a written waiver permitting counsel for the defendant to communicate ex parte with the individuals who have, are, or will provide medical services and attention to the plaintiff. Defendant requested the execution of a patient's waiver directed "to any doctor or hospital or practioner of the healing art" waiving "all rights of confidentiality of every nature which I may have with respect to any medical information which you may possess which is in any manner relevant to my claim for personal injuries which I suffered on or about December 28, 1984," as well as "the patient/physician ... privilege which may exist." The waiver further gave notification that "no privilege exists and none is claimed with respect to disclosure to" one of the law firms representing defendant.

The trial court denied defendant's motion for discovery seeking court-ordered execution of the tendered waiver. The court concluded that the confidential nature of the physician-patient relationship was not waived by the suit, and that the waiver of the testimonial privilege provided in Iowa Code section 622.10 is applicable to formal discovery and testimony rather than to private interviews.

Initially, we examine the effect of the waiver when executed. It is a notice to the health practitioner that the patient is relinquishing certain rights, and it suggests that disclosure may be made to defendant's lawyers of any information or opinions, as well as any tangible documents or test results, which are in any manner relevant to the accident in question. We agree with defendant that the waiver does not require the health practitioner to voluntarily cooperate with defendant's attorney. The waiver speaks to two matters: "all rights of confidentiality of every nature," and privilege.

We assume that by "rights of confidentiality" the waiver refers to the medical profession's self-imposed standard of conduct, originating in the Hippocratic oath, that a physician not disclose a patient's confidences without the patient's consent, except as authorized or required by law. Certain jurisdictions recognize a cause of action for a breach of this duty of confidentiality. Geisberger v. Willuhn, 72 Ill.App.3d 435, 437, 28 Ill.Dec. 586, 946, 390 N.E.2d 945, 946 (1979); Anker v. Brodnitz, 98 Misc.2d 148, 152-53, 413 N.Y.S.2d 582, 585 (Sup.Ct.1979); Humphers v. First Interstate Bank, 298 Or. 706, 721, 696 P.2d 527, 535 (1985). The issues here, however, concern enforced waiver of confidentiality rather than breach of confidentiality.

By the "patient/physician ... privilege which may exist," we believe defendant refers to our evidentiary rule regarding privileged communications which, if utilized, renders certain testimony inadmissible. Iowa Code § 622.10 (1985). There is no common law testimonial privilege in Iowa. State v. Bedel, 193 N.W.2d 121, 123-24 (Iowa 1971). The privilege provided by section 622.10 is limited.

A ... physician ... shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person's professional capacity.... The prohibition does not apply to cases where the person in whose favor the prohibition is made waives the rights conferred; nor does the prohibition apply to physicians ... in a civil action in which the condition of the person in whose favor the prohibition is made is an element or factor of the claim.... The evidence is admissible upon trial of the action only as it relates to the condition alleged. If an adverse party desires the oral deposition, either discovery or evidentiary, of a physician ... to which the prohibition would otherwise apply ... the adverse party shall file an application with the court for permission to do so.

The physician-patient rule provided in section 622.10 is an evidentiary rule rather than a substantive right. State ex rel. Leas in the Interest of O'Neal, 303 N.W.2d 414, 419 (Iowa 1981). This section is given liberal construction, in accordance with its purpose to make consultation between a patient and physician entirely confidential and free from disclosure in a legal proceeding. Howard v. Porter, 240 Iowa 153, 155, 35 N.W.2d 837, 838 (1949). Section 622.10 applies only to the testimonial use of privileged information, however, because it comes into play "in giving testimony." Testimony is a declaration by a witness in court or during a deposition. In re Burcham's Estate, 211 Iowa 1395, 1399, 235 N.W. 764, 766 (1931). Testimony requires the administration of an oath or affirmation. Section 622.10 does not speak to the issue of private communications in a nontestimonial setting. Consequently, we agree with defendant's argument that section 622.10 permits, or at least does not prohibit, private conversation between defendant's counsel and the physician.

Likewise, we believe that the section's provision for waiver has no application to a nontestimonial situation. The provision for waiver in section 622.10 refers specifically to the "prohibition" in that section, and makes no reference to nontestimonial private interviews. The prohibition is limited to situations "in giving testimony." Iowa Code § 622.10. To construe this section to imply that the waiver provided for in the section also applies to private interviews would violate a basic principle of statutory construction. When a statute is unambiguous and its meaning clear, we need not search for meaning beyond its express language. Phillips v. Iowa District Court, 380 N.W.2d 706, 710 (Iowa 1986). Thus, we cannot accept defendant's contention that the plaintiff's suit totally waives the confidential nature of the physician-patient relationship. It only waives the application of the privilege, which is confined by the statute to a testimonial setting, and does not speak to ex parte communications in a nontestimonial setting.

Defendant complains that, as a practical matter, a physician will not talk to defendant privately without such a patient waiver. This is quite understandable, as the physician would be acting at his or her own peril, as we discussed earlier. Defendant urges the court to force the execution of the patient waiver because such interviews are consistent with our discovery rules and further the policy of such rules.

Defendant correctly states our policy of encouraging the parties to agree on informal discovery. We have often stated that our discovery rules should be liberally construed to effectuate disclosure of all relevant and material information to the parties. Mason v. Robinson, 340 N.W.2d 236, 241 (Iowa 1983). We have also recognized the principle that the public has a right to every man's evidence. Winegard v. Oxberger, 258 N.W.2d 847, 850 (Iowa 1977). Defendant cites no rules of discovery that expressly provide for execution of the waiver that defendant espouses, nor do we find any rule that even hints of this possibility. Our rule speaks only to depositions, interrogatories, production of documents, inspection, physical and mental examination, and requests for admissions. Iowa R. Civ. P. 121. The addition of a new discovery method, the court enforced waiver of privilege leading to ex parte informal interviews with physicians, should be accomplished by a change in the Rules of Civil Procedure, rather than by judicial fiat. We are not free to redraft our discovery rules to add a new method, under the...

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  • Church's Fried Chicken No. 1040 v. Hanson
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    • Court of Appeals of New Mexico
    • October 15, 1992
    ...106 Ill.Dec. 55, 505 N.E.2d 361, and cert. denied, 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987); Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353 (Iowa 1986); Wesley Med. Ctr. v. Clark, 234 Kan. 13, 669 P.2d 209 (1983); Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333 ......
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    ...the boundaries of the privilege and lead to the discovery of embarrassing and harmful information. Roosevelt Hotel Limited Partnership v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986). Wenninger, 307 Minn. at 411, 240 N.W.2d at 337; Nelson, 130 N.H. at 111, 534 A.2d at 723; Anker, 98 Misc.2d at ......
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    ...... with the difficulty of determining whether a particular piece of information is relevant’ ” (quoting Roosevelt Hotel Ltd. P'ship v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986))). Additionally, we recognized that “[t]he harm from disclosure of this confidential information cannot ... be ful......
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2 books & journal articles
  • The Physician-patient Privilege: May Defense Counsel Conduct Ex Parte Interviews With Plaintiff's Treating Physician
    • United States
    • Kansas Bar Association KBA Bar Journal No. 61-09, September 1992
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