Sher v. De Haven

• Decision Date: 02 October 1952
• Docket Number: No. 11244.,11244.
• Citation: 199 F.2d 777
• Parties: SHER v. DE HAVEN et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

199 F.2d 777 (1952)

SHER v. DE HAVEN et al.

No. 11244.

United States Court of Appeals District of Columbia Circuit.

Argued May 15, 1952.

Decided October 2, 1952.

Petition for Rehearing Denied December 17, 1952.

COPYRIGHT MATERIAL OMITTED

Walter J. Cahill, Washington, D. C., with whom Irving A. Levine, Washington, D. C., was on the brief, for appellant.

Richard H. Love, Washington, D. C., for appellees.

Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

On May 16, 1948, in a street intersection in the District of Columbia, an automobile operated by Abie A. Sher struck a tractor-trailer driven by Clifford W. DeHaven. DeHaven sued to recover damages for injuries suffered in the accident and obtained judgment against Sher for $18,000. Clayton Rose, who was riding with DeHaven, was awarded judgment for $250. Sher appeals.

I

The appellant's first contention is that the District Court erred to his prejudice in denying his pretrial motion under Rule 34 of the Federal Rules of Civil Procedure^* that DeHaven be required to produce, and to permit him to inspect and copy, the reports made by five physicians who examined or treated DeHaven at various times from May 16, 1948, the date of the accident, to October 5, 1950, the date the motion was filed; and that Rose be required to produce the report of the physician who examined or treated him at Providence Hospital on May 16, 1948. As grounds for the motion, Sher said the information contained in the reports was necessary to a proper defense and that it would be more expeditious and economical to inspect and copy the physicians' reports than to use the alternative of proceeding by subpoena and deposition, which he characterized as costly and time-consuming. Sher also gave the following as one of the reasons why his motion should be granted:¹

"Defendant is, and at all times has been, willing to supply plaintiffs with a copy of the medical report of defendants medical examiner on his examination of plaintiff DeHaven."

The motion was denied by the District Court on November 7, 1950, — more than seven months before the trial began on June 25, 1951.

Under Rule 34 and the related Rule 26 (b), if the moving party shows good cause for the production of the documents he seeks, if the documents are not privileged, and if they constitute or contain evidence relating to the subject matter involved in the action, the District Court may order the party who has possession of the desired documents to produce them, and to permit the movant to inspect and copy or photograph them.

We need not decide the doubtful question whether Sher showed "good cause" for the production of the reports,² nor the equally doubtful question whether the reports constituted evidence,³ because we think the documents fell within the privilege statute as interpreted by our decisions, and therefore were not subject to discovery under Rule 34.

The pertinent part of the statute, § 14-308, D.C.Code 1940, is:

"In the courts of the District of Columbia no physician or surgeon shall be permitted, without the consent of the person afflicted, * * * to disclose any information, confidential in its nature, which he shall have acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity, * * *."

The statutory privilege extends not only to information orally given by the patient to the physician, but also to "any information obtained by him in his professional capacity," which of course includes "information obtained through his observation or examination of the patient," as well as "all inferences and conclusions drawn therefrom." The following decisions from which the phrases just quoted are taken, support the broad interpretation of the statute which we have stated.

In Labofish v. Berman, 1932, 60 App. D.C. 397, 400, 55 F.2d 1022, 1025, our Chief Justice Groner said:

"* * * as has been heretofore stated a number of times, * * * under the District of Columbia statute on the subject, a physician may not be permitted to testify (except by the consent of the patient or his legal representatives) as to any matter which has come to his knowledge strictly out of his professional relationship to the patient. * * * We do not understand this language to make the physician ineligible as a witness under all circumstances, for instance, we think it clear that he may testify as to his employment by the patient * * *. But as to all knowledge or information acquired by him through disclosures made by the patient, as well as information obtained through his observation or examination of the patient and to all inferences and conclusions drawn therefrom, we think the statute seals his lips, and this because the relationship of itself is and ought to be in its nature confidential."

Judge Groner held in Eureka-Maryland Assurance Company v. Gray, 1941, 74 App. D.C. 191, 194, 121 F.2d 104, 107, certiorari denied 314 U.S. 613, 62 S.Ct. 114, 86 L.Ed. 494, that the trial court correctly rejected hospital records offered by an interne who stated that the information therein came from the patient. He said:

"The local statute is very broad. It forbids disclosure by the physician of any information obtained by him in his professional capacity."

Moreover, the privilege extends to treatment just as it does to examination and diagnosis. In Kaplan v. Manhattan Life Insurance Co., 1939, 71 App.D.C. 250, 252, 109 F.2d 463, 465, Judge Edgerton said, with respect to hospital records:

"* * * a properly authenticated record of the patient\'s name, address, age, etc., is admissible, provided there is no disclosure of diagnosis or treatment." (Emphasis supplied.)

Under the statute as thus construed, we think the physicians' reports which the appellant sought were privileged and so were beyond his reach, unless he was entitled to them under Rule 35. We now consider the applicability of that rule.

Whether Rule 35 applies depends upon the effect of Sher's statement in his discovery motion that he was willing to give the paintiffs "a copy of the medical report of defendants Sher's medical examiner on his examination of plaintiff DeHaven." Section (b) (1) of Rule 35 provides that a party who has submitted to examination by his adversary's physician shall be entitled to receive, upon request, a copy of a detailed written report of the examining physician setting out his findings and conclusions. It is reciprocally provided that, when the party examined by his adversary's physician has requested and received a copy of that physician's report, he must furnish to his adversary, upon request, a like report of any examination, previously or subsequently made, of the same mental or physical condition.

Since the procedure under section (b) (1), if followed by the party examined, obviously destroys any privilege afforded him by statute, section (b)(2) of the Rule provides that, by exercising his rights thereunder, the party examined waives any privilege he may have with respect to his own physician's reports.⁴ It does not appear that DeHaven requested or received a copy of the report of the examination made of him by Sher's physician. We observe from the Rule that it is "After such request and delivery" that the party causing the examination to be made is entitled to request and receive from the party examined a copy of the report of any other examination previously or subsequently made. We conclude, therefore, that Sher's mere willingness to furnish DeHaven a report which he had not requested, and had not received, did not entitle him under Rule 35 to demand reports of other examinations which DeHaven had undergone on his own account.⁵ The Rule is in derogation of the statutory privilege and should be strictly construed.

Since DeHaven had not requested and obtained the report of Sher's medical examiner and did not take the examiner's deposition, he had not waived under Rule 35(b) (2) the privilege we have held he had regarding the reports of physicians who made other examinations at his instance.

We have already said the District Court correctly denied the appellant's motion under Rule 34. Even if we were in doubt as to that, we would not disturb the action of the trial court since orders under that Rule are largely discretionary with it, and its action will not be set aside on appeal unless it was improvidently taken and affected the substantial rights of the parties.⁶ Here the denial of...