State ex rel. Barks v. Pelikan
| Decision Date | 01 March 2022 |
| Docket Number | SC 99024 |
| Citation | 640 S.W.3d 105 |
| Parties | STATE EX REL. Kimberly BARKS, Relator, v. The Honorable Daniel PELIKAN, Respondent. |
| Court | Missouri Supreme Court |
Barks was represented by Jackie M. Kinder, Joshua R. Kolb and Clayton R. Diskin of Brown & James PC in St. Louis, (314) 421-3400.
Sheila Spencer was represented by Nolan Drafahl of the Drafahl Law Firm in St. Louis, (314) 300-6260.
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.
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, State ex rel. Stinson v. House , 316 S.W.3d 915, 918 (Mo. banc 2010) (citation omitted).
Section 491.060(5)1 governs the physician-patient privilege in Missouri. Section 491.060(5) provides:
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 physician, free from fear of the possible embarrassment and invasion of privacy engendered by an unauthorized disclosure of information." Dean , 182 S.W.3d at 567 (citation omitted).
The physician-patient privilege is not absolute, however, and "[t]he fact that documents fall within the scope of the physician-patient privilege does not end the inquiry." State ex rel. Health Midwest Dev. Grp., Inc. v. Daugherty , 965 S.W.2d 841, 844 (Mo. banc 1998). A patient can waive the privilege by either express or implied waiver. Dean , 182 S.W.3d at 567. The most common waiver cases "involve plaintiffs who voluntarily place their medical condition in issue by filing a petition alleging that they suffered physical or mental injuries." Rodriguez v. Suzuki Motor Corp. , 996 S.W.2d 47, 63 (Mo. banc 1999). However, "[a] party may also impliedly waive the privilege through an act showing a clear, unequivocal purpose to divulge the confidential information." Id. (emphasis added) (internal quotation marks and citations omitted); see also Fitzgerald v. Metro. Life Ins. Co. , 149 S.W.2d 389, 391 (Mo. App. 1941) ).
The parties agree Barks’ medical records fall within the scope of the physician-patient privilege. On appeal, the sole question is whether Barks’ affirmative defenses waive her physician-patient privilege. Spencer argues Barks’ affirmative defenses constitute a waiver because they bring Barks’ physical condition into issue.
This Court addressed a physician-patient privilege waiver challenge in Rodriguez , 996 S.W.2d 47. In Rodriguez , vehicle manufacturer Suzuki sought to discover a defendant-driver's medical records following an accident. Id. at 61. The defendant had admitted to drinking several glasses of wine prior to the accident. Id. The circuit court denied Suzuki's discovery requests, and Suzuki appealed. Id. Suzuki claimed the defendant waived her physician-patient privilege by testifying she was not intoxicated in rebuttal to Suzuki's offer of proof and responding to questions concerning her intoxication on cross-examination. Id. at 63. This Court disagreed, holding the defendant did not waive her physician-patient privilege. Id. This Court first explained a denial of an allegation does not constitute a waiver "because to do so would force the patient to choose between suffering judgment by default or waiving the physician-patient privilege[.]" Id. This Court then held that, by the same reasoning, the defendant's rebuttal to Suzuki's offer of proof could not constitute a waiver. Id. The defendant did not waive her physician-patient privilege "by introducing non-medical evidence at trial." Id. at 63-64. "Furthermore, the responses to questions on cross-examination that required her to divulge information about her intoxication are considered ‘extorted’ and, therefore, involuntary." Id. at 64.
Rodriguez approvingly cited State ex rel. Hayter v. Griffin , 785 S.W.2d 590 (Mo. App. 1990), a wrongful death action arising out of a fatal highway accident. See Rodriguez , 996 S.W.2d at 63-64. In Hayter , the plaintiffs alleged Hayter's diabetic condition caused him to lose consciousness, resulting in the subsequent accident. Hayter , 785 S.W.2d at 592. Hayter and the other defendants denied the allegations and claimed the plaintiffs were contributorily negligent. Id. at 593. Accordingly, the defendants sought for damages to be reduced based on the doctrine of comparative fault. Id. On appeal, a key issue was whether the defendants’ assertion of the affirmative defense of comparative fault constituted a...
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