St. Louis Little Rock Hosp., Inc. v. Gaertner

• Decision Date: 27 November 1984
• Docket Number: No. 48899,No. 1,1,48899
• Citation: 682 S.W.2d 146
• Parties: ST. LOUIS LITTLE ROCK HOSPITAL, INC. d/b/a Compton Hills Medical Center, Relator, v. Honorable Gary M. GAERTNER, Judge of Divisionof the Circuit Court, St. Louis City, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 146

682 S.W.2d 146

ST. LOUIS LITTLE ROCK HOSPITAL, INC. d/b/a Compton Hills Medical Center, Relator, v. Honorable Gary M. GAERTNER, Judge of Division No. 1 of the Circuit Court, St. Louis City, Missouri, Respondent.

No. 48899.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 27, 1984.

James J. Amelung, St. Louis, for relator.

David R. Swimmer, Clayton, for respondent.

GAERTNER, Judge.

Mandamus Relator St. Louis-Little Rock Hospital, Inc., d.b.a. Compton Hills Medical Center, is a defendant in a wrongful death action entitled McCellan v. St. Louis-Little Rock Hospital, Inc., which is pending in the Circuit Court of the City of St. Louis and over which respondent, a judge of that court, has presided. Our preliminary writ of mandamus is made absolute.

Plaintiffs in the underlying action seek to recover for the allegedly wrongful death of their decedent, who committed suicide by drinking a bottle of toilet bowl cleanser while she was under relator's care for treatment of her alcohol abuse, chemical dependency and depression. Relator's alleged negligence consists primarily of an alleged failure to provide adequate supervision and monitoring of the decedent when relator knew or should have known that she was severely depressed and suicidal, and in leaving a bottle of toilet bowl cleanser in her room.

On March 9, 1984, plaintiffs served a request for production on relator and other defendants. Relator objected to a number of the requests on April 4, 1984, but respondent overruled these objections on June 21, 1984. After respondent denied relator's motion to set aside this order, relator applied to us for a writ of mandamus contending that respondent was without jurisdiction and abused his discretion in overruling relator's objections to plaintiffs' requests for production 4 and 7:

4. That complete contents of all investigations made by Defendants concerning decedent or circumstances of her death from November 19, 1982 until the filing of Plaintiffs' Petition.

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7. That complete contents of all documentation of suicides, reported suicides, accidental deaths, attempted suicides or threatened suicides within five (5) years prior to November 19, 1982.

The first issue is whether mandamus will lie to review a trial court's refusal to sustain objections to discovery which are based upon work product or privilege. Respondent contends that no authority exists for use of mandamus in the present case and that, under the present circumstances, it is a "guerilla" substitute for direct appeal which will sabotage orderly appellate procedure.

Mandamus will lie to review a trial court's sustention of objections to discovery because the refusal to permit discovery of matters which are relevant to the lawsuit and reasonably calculated to lead to admissible evidence and which are neither work product nor privileged is an abuse of discretion. State ex rel. Hudson v. Ginn, 374 S.W.2d 34 (Mo. banc 1964). The converse, the refusal to forbid discovery of matters which are privileged or work product, is an act outside the court's jurisdiction and an abuse of discretion. See State ex rel. Mueller v. Dixon, 456 S.W.2d 594, 598-599 (Mo.App.1970). Thus, mandamus will also be available to review a trial court's overruling objections to discovery on the grounds that the matters sought are privileged or constitute work product.

Moreover, prohibition has long been available to prevent a trial court from abusing its discretion by ordering discovery of privileged matters or of work product. State ex rel. Gonzenbach v. Eberwein, 655 S.W.2d 794, 795 (Mo.App.1983); See State ex rel. Mueller v. Dixon, supra. The distinction between mandamus and prohibition is at best blurred, at worst nonexistent, and the subject matter to which the two writs apply overlap to a great extent. See Tuchler, "Discretionary Interlocutory Review in Missouri: Judicial Abuse of the Writ?" 40 Mo.L.Rev. 577, 586-87 (1975). Since prohibition would lie here, we see no reason to deny the applicability of mandamus. Under the circumstances of the present case, we will not engage in fine, anachronistic distinctions of nomenclature. We refuse to revert to the hypertechnical niceties of Common Law Pleading where the title of a pleading was of more importance than its content.

Finally, relator has no adequate remedy by direct appeal. If the matters sought to be discovered are protected from discovery by reason of privilege or work product, then disclosure to plaintiffs would violate the confidentiality essential to maintaining a privilege, and no remedy by appeal could restore that confidentiality.

Respondent refused to stay his order which overruled relator's objections to the requests for production. The refusal to stay, however, does not mean that this court may not compel him to vacate his order, where prohibition is sought. "So long as anything remains to be done to carry a judgment into effect the writ may go, and it may take on such form as the exigencies of the situation may demand." State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S.W. 651, 652 (Mo.App.1916). The same is true of mandamus. An inferior court may not so structure the posture of a case as to preclude review by a superior court. If the trial court stays its ruling, the extraordinary writ may issue against the entry of the order; if no stay is issued, the extraordinary writ may issue against the enforcement of the order.

Respondent also argues that relator has waived any objections to the requests for production because relator's objections were filed beyond the twenty days set forth in Rule 58.01(b). The argument is untenable. Plaintiffs' requests for production expressly granted relator forty-five days in which to respond and the objections were filed within the forty-five days. Plaintiffs are estopped to assert the twenty day requirement of the rule.

We turn now to the substance of the present case. Two issues are presented to us for determination: (1) Is the information sought by request number four, the complete contents of all investigations made by relator between the date of the incident and the filing of the petition, protected from discovery by the work product doctrine or by the attorney-client privilege; and (2) Is the information sought by request number seven, which includes medical files and incident reports on other patients, protected from discovery by the physician-patient privilege?

As to request number four, it is axiomatic that, under Missouri procedure, a party may not be required to produce the content of his pre-trial investigation in the absence of a showing of substantial need and undue hardship in obtaining equivalent information. Rule 56.01(b)(3). No such showing has been demonstrated by plaintiffs here. Based upon the form and scope of the request, relator's objection should have been sustained. However, although nothing of record leads to this conclusion, the parties in their respective briefs and in oral argument, seem to have agreed that this request is directed toward a single document, an incident report prepared by a nurse employed by relator. Because the parties have narrowed the issue to this one item, we will overlook the broad form of the request for production and direct our attention to the narrow issue addressed by the parties.

Documents prepared by an agent or employee at the direction of an employer for the purpose of obtaining an attorney's advice or for use in prospective or pending litigation fall within the attorney-client privilege. The seminal case in Missouri regarding pre-trial production of documents prepared by employees for the employer following an incident is State ex rel. Terminal Railroad Association of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69 (banc 1953).

"A statement concerning an accident obtained by an employer from his servant for the bona fide purpose of being later transmitted to the employer's attorney for advice, or to be used by the attorney in connection with pending or threatened litigation, is privileged, because it is part of the communication from the client to his counsel. The same is true of a statement by the accredited agent of a corporation, giving his account of an accident for use of counsel in pending or threatened litigation...."

Id. at 73, quoting 58 Am.Jur. 282, Witnesses, § 503. ¹ Accord, Martin v. Lingle Refrigeration Co., 260 S.W.2d 562, 566 (Mo.1953); Lindberg v. Safeway Stores, Inc., 525 S.W.2d 571, 572 (Mo.App.1975).

To constitute work product, materials must be prepared in anticipation of litigation. Rule 56.01(b)(3). Accordingly, we must look to the nature and purpose of the incident report in this case. Relator has attached as exhibits to its brief the Compton Hills Medical Center Safety Manual. The section thereof labelled "Incident/Accident Reporting System," provides for the preparation in triplicate of reports of all incidents. One copy is sent to the hospital administration, one to the head of the involved department, and one to the hospital's insurance company. It is significant to note that this third copy is sent to the insuror not immediately after the incident, but "on a monthly basis." The insurance company "feeds these reports into a computer and sends back to the hospital a computer printout." After review by the Incident Report Coordinator and the Safety Committee, the report forms the basis for corrective and preventive action. It is a further significance that the incident report form, although containing the name of the insurance company, is headed as follows:

THE ST PAUL PATIENT INCIDENT REPORT

Property & Liability NOT A NOTICE OF LOSS

Insurance For Loss Prevention Purposes Only

The use served by these incident reports is obviously that of future loss prevention, an important and praiseworthy objective. But they are not documents prepared in anticipation of litigation so as to invoke application of the work product exception to discovery.

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