Scott By and Through Scott v. Flynt

Citation704 So.2d 998
Decision Date18 April 1996
Docket NumberNo. 92-IA-00397-SCT,92-IA-00397-SCT
PartiesVivian Faith SCOTT, By and Through Her Mother and Next of Kin, Cynthia Ann SCOTT v. Joel R. FLYNT, M.D.
CourtUnited States State Supreme Court of Mississippi

C. Victor Welsh, III, Pittman Germany Roberts & Welsh, Crymes G. Pittman, Pittman Germany Firm, Jackson, for appellant.

F.M. Turner, III, Bryan Nelson Randolph & Weathers, Sandra S. Mohler, Bryan Nelson Firm, Hattiesburg, for appellee.

F. Hall Bailey, Wise Carter Child & Caraway, Jim P. Brantley, Susan McDonald, Nashville, TN; John G. Jones, Jackson, for amicus curiae.

Before DAN LEE, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:


This case presents the Court with a policy decision regarding the scope of the waiver for the medical privilege as contemplated by Mississippi Rule of Evidence 503 and whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure. Having reviewed the rules and comments, and attempting to balance the interests and concerns of all, the Court today finds that the scope of the waiver of the medical privilege is limited to relevant medical information to the injury placed in issue by the plaintiff. Further, our rules of evidence and procedure prohibit the admissibility of any evidence obtained from any ex parte contacts without prior patient consent by opposing counsel with medical providers of the plaintiff. Accordingly, the lower court's ruling ordering the plaintiff to execute an unconditional waiver of her medical privilege is reversed and this case is reversed and remanded.


This case began December 2, 1991, with the filing of Vivian Faith Scott's complaint, by and through her mother, Cynthia Ann Scott, in the Forrest County Circuit court seeking civil damages against Dr. Joel R. Flynt for negligence (medical malpractice). The alleged medical malpractice occurred on September 21, 1989, during the delivery of Vivian Faith Scott. Dr. Flynt filed his Answer on February 18, 1992, denying the claim and alleging several defenses.

Discovery began and Dr. Flynt subsequently filed his Motion To Compel Medical Waiver seeking to have the circuit court require the plaintiff to unconditionally waive her medical privilege to permit ex parte conversations by the defendant with any and all health care providers of the plaintiff. The plaintiff filed her respective response alleging that the Mississippi Rules of Civil Procedure and her constitutional right to privacy under both the Mississippi and United States Constitution prohibited any such ex parte contacts. The plaintiff contended that she would only allow discovery of her relevant medical records through formal discovery. However, Forrest County Circuit Court Judge Richard W. McKenzie entered an Order on April 2, 1992, granting the requested waiver ordering the plaintiff to execute the unconditional medical waiver and permitting ex parte conferences by the defendants with any medical provider of the plaintiff.

On April 22, 1992, the plaintiff filed her Petition For Extraordinary Relief with the Mississippi Supreme Court. The motion was presented to a three-justice panel which ordered

that all discovery of medical information in the matter was to be stayed until further order of the Court. Additionally, the panel found that the petition presented two interrelated questions of law about which there was a substantial basis for a difference of opinion requiring the Court to treat the Petition for Extraordinary Relief as an Interlocutory Appeal

The two interrelated questions of law, as determined by the panel, for resolution of this dispute are:



The Forrest County Circuit court subsequently entered an Order staying all other proceedings in this action pending the resolution of the Interlocutory Appeal by the Court.


This case began September 21, 1989, when Cynthia Scott was admitted to the Forrest General Hospital in Hattiesburg, Mississippi, under the supervision of Dr. Flynt for delivery of her baby girl, Vivian Faith Scott. Dr. Flynt also provided Cynthia with prenatal services. Vivian allegedly suffered shoulder dystocia resulting in partial permanent paralysis of her left arm and shoulder following her delivery. However, the issue of medical malpractice is not presently before the Court.

Approximately two years and two months later, the present complaint for medical malpractice was filed. The parties began discovery creating the disputes over the waiver of plaintiff's medical privilege and the discoverability of her medical information which is presently before the Court on interlocutory appeal.




The plaintiff, Vivian, contends that the scope of the medical waiver under M.R.E. 503 and Miss.Code Ann. § 13-1-21(4) is limited and not unconditional as ordered by the trial court. She urges the Court to hold that the waiver is limited to relevant medical information only. Vivian also contends that a plaintiff in a medical malpractice or personal injury action should be allowed to review any requested medical information prior to its disclosure to prevent persons with personal medical knowledge of the plaintiff from disclosing irrelevant and possibly embarrassing personal information about her medical history. Vivian urges that compounded problems in the form of civil suits for invasion of privacy will result unless such precautions are taken to prevent the disclosure of protected irrelevant privileged information. We agree.

In support of a limited waiver under M.R.E. 503 and § 13-1-21, Vivian points out one case in particular in which we held that the waiver of the medical privilege was a limited and not an unconditional waiver. Sessums v. McFall, 551 So.2d 178 (Miss.1989). Sessums involved injuries to a motorcyclist after being hit by an automobile. Sessums held: (1) that testimony of the physician who treated the injured plaintiff about information obtained on the cause of the accident was privileged and should have been excluded when the plaintiff objected to the testimony; (2) introduction into evidence of his medical bills and testimony by the plaintiff on cross-examination, denying he made the statements to his physician did not waive his physician/patient privilege as to the cause of the accident; and (3) the failure to exclude the physician's testimony about the cause of the accident was prejudicial error. Id. at 180-81.

The essence of Sessums was that filing suit and submitting evidence on his injuries only waived his medical privilege to the extent of those injuries. Id. at 180. Notably however, Sessums was a personal injury suit against a

third party and not against his physician for medical malpractice. Nevertheless, we find that the waiver is to be treated the same in medical malpractice cases as well

Dr. Flynt's contrary viewpoint is that the mere fact of having filed a medical malpractice action means that all information from whatever source which was previously privileged is no longer protected according to his interpretation of M.R.E. 503 and § 13-1-21. He further contends that the waiver acts to allow ex parte contacts before the formal discovery processes begin. Therefore, according to Dr. Flynt, when a plaintiff files or gives notice of a claim to be filed for medical malpractice against a physician, that such actions create an automatic and absolute waiver of any medical privilege concerning any of the plaintiff's medical history. We disagree.

Mississippi Rule Of Evidence 503. Physician and Psychotherapist-Patient Privilege states in relevant part:

(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing (A) knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient, or (B) confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

(c) Who May Claim the Privilege.

The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient.

(d) Exceptions.


(3) There is no privilege under this rule as to an issue of breach of duty by the physician or psychotherapist to his patient or by the patient to his physician or psychotherapist.

(e) In an action commenced or claim made against a person for professional services rendered or which should have been rendered, the delivery of written notice of such claim or the filing of such an action shall constitute a waiver of the privilege under this rule.

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

M.R.E. 503 (amended October 13, 1992) (emphasis added).

Advisory Committee Historical Note

Effective October 13, 1992, Rule 503(f) was amended to state that the rule is inapplicable in contexts...

To continue reading

Request your trial
23 cases
  • Hood ex rel. State Tobacco Litigation, 2006-SA-01088-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 14, 2007
    ...281 (Miss.2002); Dean v. PERS, 797 So.2d 830, 833 (Miss.2000); Johnson v. Memorial Hosp., 732 So.2d 864, 866 (Miss.1998); Scott v. Flynt, 704 So.2d 998, 1007 (Miss. 1996); Kron v. Van Cleave, 339 So.2d 559, 563 (Miss.1976) ("It is familiar learning that courts will not decide a constitution......
  • Franklin Collection Service, Inc. v. Kyle, 2005-IA-00988-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 26, 2007
    ...754 So.2d 1165 (Miss.2000) (applying both to determine whether the privilege applies in civil cases); Scott ex rel. Scott v. Flynt, 704 So.2d 998 (Miss.1996) (same); and Touchstone v. Touchstone, 682 So.2d 374 (Miss. 1996) (applying both to determine that the physician-patient privilege doe......
  • Dickerson v. State, 2018-CA-00710-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 5, 2020
    ...will not decide a constitutional question unless it is necessary to do so in order to decide the case.’ " Scott ex rel. Scott v. Flynt , 704 So. 2d 998, 1007 (Miss. 1996) ; see also Johnson v. Mem'l Hosp. of Gulfport , 732 So. 2d 864, 866 (Miss....
  • Franklin Collection Service, Inc. v. Kyle, No. 2005-IA-00988-SCT (Miss. 1/11/2007), 2005-IA-00988-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 11, 2007
    ...754 So. 2d 1165 (Miss. 2000) (applying both to determine whether the privilege applies in civil cases); Scott ex rel. Scott v. Flynt, 704 So. 2d 998 (Miss. 1996) (same); and Touchstone v. Touchstone, 682 So. 2d 374 (Miss. 1996) (applying both to determine that the physician-patient privileg......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT