State ex rel. Barks v. Pelikan, SC99024

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRobin Ransom, Judge
Docket NumberSC99024
Decision Date01 March 2022

STATE ex rel. KIMBERLY BARKS, Relator,


No. SC99024

Supreme Court of Missouri, En Banc

March 1, 2022


Robin Ransom, Judge

Kimberly Barks petitions this Court for a writ of prohibition or mandamus to prevent the disclosure of her medical records. Barks contends the circuit court erred by ordering the release of her medical records because her records were protected by the physician-patient privilege. This Court agrees and holds Barks did not waive the physician-patient privilege by pleading the affirmative defenses of comparative fault and assumption of risk. This Court's preliminary writ is now made permanent.


In August 2019, a golf cart driven by Barks was involved in an accident in St. Charles County, Missouri. Sheila Spencer was a passenger in the golf cart and allegedly sustained personal injuries. Spencer sued Barks, alleging Barks was negligent in operating


the golf cart because, among other reasons, Barks was intoxicated while operating the golf cart.

Barks denied Spencer's allegations, including that she operated the golf cart while intoxicated. Barks also, alternatively, asserted several affirmative defenses including comparative fault, implied primary assumption of risk, and implied secondary assumption of risk. Specifically, Barks claimed Spencer "assumed the risk of injury and accident by entering and continuing to ride in the golf cart if the driver of said vehicle was under the influence and therefore [Spencer] is barred from recovery against [Barks] and/or her fault should be compared and allocated."

Spencer sought discovery of Barks' medical records from the night of the accident through the following morning. Barks objected to Spencer's request and claimed the records were protected by the physician-patient privilege. In response, Spencer filed a motion to compel Barks to produce the requested medical records or, in the alternative, a motion to strike Barks' affirmative defenses. In the motion, Spencer argued Barks "waived the physician-patient privilege by affirmatively interjecting her intoxication into the case via her affirmative defenses."

After a hearing on the motion, the circuit court sustained Spencer's motion to compel discovery of Barks' medical records related to her "alleged intoxication on the date of the incident and following day." Barks then filed a petition for writ of mandamus or prohibition in the court of appeals, seeking to prevent the disclosure of her medical records. The court of appeals denied Barks' petition. Subsequently, Barks informed the circuit court she was going to file a petition with this Court. In response, the circuit court ordered Barks


to produce the requested medical records within 20 days of March 25, 2021, unless her petition to this Court was still pending.

On March 26, 2021, Barks filed a petition for writ of prohibition or mandamus with this Court. This Court issued a preliminary writ of prohibition and commanded the circuit court to take no further action in this matter, other than to set aside its order compelling discovery of Barks' medical records or show cause why this writ should not issue.

Jurisdiction and Standard of Review

This Court has jurisdiction to issue original remedial writs pursuant to article V, section 4 of the Missouri Constitution.

A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted

State ex rel. Becker v. Wood, 611 S.W.3d 510, 513 (Mo. banc 2020) (quoting State ex rel. Anheuser-Busch, LLC v. Moriarty, 589 S.W.3d 567, 570 (Mo. banc 2019)). Specifically, "[p]rohibition is an appropriate remedy when a party is ordered to produce material that is protected from discovery by some privilege. Otherwise, if privileged material were produced, the damage to the disclosing party would be irreparable and could not be repaired on appeal." State ex rel. Stinson v. House, 316 S.W.3d 915, 918 (Mo. banc 2010) (citation omitted).


The Physician-Patient Privilege

Section 491.060(5)[1] governs the physician-patient privilege in Missouri. Section 491.060(5) provides:

The following persons shall be incompetent to testify: …

(5) A physician licensed pursuant to chapter 334, a chiropractor licensed pursuant to chapter 331, a licensed psychologist or a dentist licensed pursuant to chapter 332 concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist

Notably, while section 491.060(5) speaks in terms of competence to testify, it is construed as a privilege statute. State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 566 (Mo. banc 2006). "Any information a physician acquires from a patient while attending the patient and which is necessary to enable the physician to provide treatment is privileged." State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997). Additionally, the physician-patient privilege applies to medical records. Dean, 182 S.W.3d at 567. The privilege is for the patient's benefit and belongs to the patient, not the physician. Id. at 566 n.5. Therefore, even when medical records are directly relevant to a party's claims, if they are protected by the privilege, they are not discoverable. Stinson, 316 S.W.3d at 919. "The purpose of the physician-patient privilege is to enable the patient to secure complete and appropriate medical treatment by encouraging candid communication between patient and


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