Sarphie v. Rowe
| Decision Date | 23 April 1993 |
| Docket Number | No. 92,92 |
| Parties | Joseph E. SARPHIE v. Donald C. ROWE, D.C., and Gavin Chiropractic Life Center, Inc., (a Professional Chiropractic Corporation). CW 0975. |
| Court | Court of Appeal of Louisiana — District of US |
Michael Palmintier, and Steve Thompson, Baton Rouge, for plaintiff Joseph E. Sarphie.
Henry Salassi, Jr., Baton Rouge, for defendant Edward Gavin, Gavin Chiropractic Life Center, Inc.
Before LOTTINGER, C.J., and FOIL and FOGG, JJ.
This writ application is on remand from the Louisiana Supreme Court with an order to set the case for "briefing, argument and opinion." 608 So.2d 182. This Court had previously denied Relator's application on grounds that the trial court had not abused its discretion in ordering the release of a patient-name list. We now grant the application due to recent, and now applicable, amendments in the law of privileges.
This is a medical malpractice action against Donald Rowe, D.C. 1 and Gavin Chiropractic Life Center (Gavin) seeking damages for a ruptured disc and/or other injuries sustained by Sarphie during a side posture lumbar roll performed by Rowe on or about March 31, 1987. One of the primary defenses advanced by Rowe and Gavin is that Rowe did not perform the procedure in question because he does not do side posture lumbar roll adjustments. Rowe allegedly subscribes to a completely different treatment philosophy.
Four days after the side posture roll by Rowe, Sarphie was examined and given conservative treatment by another chiropractor employed by Gavin, Michael Hamby. Hamby's deposition was also taken in this matter. Hamby confirmed that Sarphie expressed displeasure with Rowe at the time of his initial examination.
Some time after Hamby's deposition, Sarphie requested that Gavin and Rowe provide a list of Rowe's patients for a period of time before and after the March 31, 1987 incident. Gavin and Rowe objected to furnishing the names. Sarphie then filed a motion to compel Gavin to produce the information. However, no Motion to Compel was filed against Rowe, who is no longer employed at the Gavin Clinic, because only Gavin has the requested information.
The trial court compelled Gavin to produce the names of all patients seen by Rowe from June 1, 1986, to June 1, 1987, and placed restrictions on Sarphie's attorney to avoid the concerns voiced by Gavin in its application for writs. Specifically, the trial court ordered Sarphie's attorney to: inform any person on the list who is contacted that his name was furnished to counsel on the basis of a court order which required that a list of Rowe's patients be furnished to Sarphie's attorney; inform any person on the list that he is not required to cooperate and that he has a privilege which he is entitled to assert if he so chooses; and obtain a written waiver of the physician/patient privilege if the patient agrees to cooperate.
Gavin assigns as error the following:
When the trial court erroneously compelled Dr. Gavin to produce the names of all patients seen by Dr. Roe [sic] for a full year, it erred on the following two accounts: (1) in finding that the names of Dr. Roe's [sic] patients are not privileged under La.R.S. 13:3734, and (2) in finding that Sarphie's interest in discovering the names of these individuals outweighed the public policy considerations [sic], privacy interests of the patients, and the business and professional interests of Gavin Chiropractic Life Center, Inc. and of Dr. Roe [sic].
The provision around which this controversy turns is La.R.S. 13:3734, entitled "Privileged communications between health care provider and patient." This provision was amended, effective January 1, 1993, by Acts 1992, No. 376, section 4. La.R.S. 13:3734(B) was amended to provide:
B. In noncriminal proceedings, testimonial privileges, exceptions, and waiver with respect to communications between a health care provider and his patient are governed by the Louisiana Code of Evidence.
Section 8 of the act states that "[c]ommunications made prior to January 1, 1993, which were subject to a valid claim of privilege under prior law, retain their privileged character unless waived." (Emphasis added). Whether the privilege existed under the prior law or under the current law, a privilege does exist. Inasmuch as we find a privilege under the current law, we see no need to discuss whether a privilege existed under the prior law.
La.R.S. 13:3734 directs our attention to the Louisiana Code of Evidence and its newly enacted fifth chapter. See La.Code Evid. art. 1101(A)(2). The pertinent provision is Louisiana Code of Evidence article 510, which sets out the "Health care provider-patient privilege" along with several definitions. In Part B of the article, the evidence code sets out the privilege as follows:
B. (...
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