State ex rel. Dixon Oaks Health Center, Inc. v. Long, 20371

• Citation: 929 S.W.2d 226
• Decision Date: 14 February 1996
• Docket Number: No. 20371,20371
• Parties: STATE of Missouri ex rel. DIXON OAKS HEALTH CENTER, INC., Relator, v. The Honorable Douglas E. LONG, Jr., Judge 25th Judicial Circuit of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 226

929 S.W.2d 226

STATE of Missouri ex rel. DIXON OAKS HEALTH CENTER, INC., Relator, v. The Honorable Douglas E. LONG, Jr., Judge 25th Judicial Circuit of Missouri, Respondent.

No. 20371.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 14, 1996.

Motion for Rehearing or Transfer

Denied March 1, 1996.

Virginia L. Fry, Eric J. Jensen, Whiteaker & Wilson, Springfield, for appellant.

Howard B. Becker, Thomas, Birdsong & Clayton, Rolla, for respondent.

Harvey M. Tettlebaum, Lowell D. Pearson, Husch & Eppenberger, Jefferson City, for Amicus Curiae.

BARNEY, Judge.

PRELIMINARY ORDER IN PROHIBITION IS QUASHED.

Relator, Dixon Oaks Health Center, Inc., one of the defendants in the underlying case herein, seeks an order in prohibition against the Honorable Douglas Long, Jr., Respondent herein, for his refusal to quash a subpoena duces tecum relating to the production of records of Relator's nursing facility residents, which it claims are barred by the physician-patient privilege as set forth in § 491.060(5). ¹ We issued a preliminary order in prohibition which we now quash, in accordance with this opinion.

In the underlying suit ² it is alleged that L. L. ³ , is a 79 year old resident patient of Dixon Oaks Health Center, Inc., a residential care facility (hereinafter referred to as Relator). She can not walk or get out of bed on her own and relies on others to communicate, feed and care for her. She also suffers from Alzheimer's disease. N.H. is also a resident of Relator who had been admitted some three years prior to L.L. He suffers from liver disease secondary to alcohol abuse and related dementia with aggressive behavior.

In early May 1994, L. L.'s daughter, E. B., discovered a large bruise on her mother's buttocks and inner thigh. She was told by a nurse that a fall that L.L. had taken a few days before was a possible source of the injuries. Two days later, E.B. discovered while changing her mother's diaper, that she was severely bruised and swollen in the anal and genital area. Susan Hand, Relator's nursing home administrator, adhered to the explanation that a fall was responsible for the injuries. Hand informed E.B. that photographs had been taken of the injuries. E.B. was not notified of either incident when it occurred and no written report was produced.

The following day, E.B. was contacted by Relator and told that N.H. had been caught fondling her mother's genitals inside her diaper. E.B. was also told by a nurse that she had seen N.H. kissing and fondling L.L. on more than one occasion. When confronted, N.H. admitted having sex with L.L. He was arrested in Pulaski County and charged with deviate sexual assault.

On October 31, 1994, all plaintiffs ⁴ in the underlying suit herein filed a written complaint with the Missouri Attorney General pursuant to the Missouri Omnibus Nursing Home Act, §§ 198.003-186. (hereinafter referred to as the Act.) § 198.093 reads as follows:

1. Any resident or former resident who is deprived of any right created by sections 198.088 and 198.090 may file a written complaint within one hundred eighty days of the alleged deprivation or injury with the office of the attorney general describing the facts surrounding the alleged deprivation. A copy of the complaint shall be sent to the Department by the Attorney General.

2. The Attorney General shall review each complaint and may initiate legal action as provided under sections 198.003 to 198.186.

3. If the Attorney General fails to initiate a legal action within sixty days of receipt of the complaint, the complainant may, within two hundred forty days of filing the complaint with the Attorney General, bring a civil action in an appropriate court against any owner, operator or the agent of any owner or operator to recover actual damages.... [And other remedies provided.]

[all references to the "Department" refer to the Department of Social Services. § 198.006(4) ].

The alleged incident occurred on or about May 10, 1994. The complaint was filed with the Attorney General on October 31, 1994. The Attorney General took no action within sixty days from receipt of the complaint and Plaintiffs, accordingly, perfected their right to proceed under the Act and initiated a civil action April 17, 1995.

Certain of Relator's nursing home records were released to Plaintiffs by the Attorney General of Missouri, which were previously obtained by the Attorney General under the provisions of § 198.093. It is alleged by Plaintiffs that these records refer to several incidences of N. H.'s sexually aggressive behavior. Plaintiffs have now issued a subpoena duces tecum to the Relator's custodian of records, requesting the production of certain records and documents at a deposition. The records sought to be produced are:

[A]ny and all records which relate to the following:

1. N.H., an individual, who was a patient at Dixon Oaks Health Center;

....

3. The incident alleged wherein L.L. was injured, attached [sic] raped on or about May 1994;

4. Any and all medical records relating to N.H., and any other patients or residents of Dixon Oaks Health Center;

5. Any and all medical records relating to N.H.

....

Relator moved to quash the subpoena duces tecum and the trial judge denied the motion. Relator originally contended that the subpoena requesting items 1, 3, 4 and 5 was: (1) violative of the physician-patient privilege of N.H. and other patients; (2) violated the attorney client privilege as per § 491.060(3); and (3) violated the work product privilege with regard to reports prepared in anticipation of litigation. Additionally, Relator complained of the breadth and scope of the subpoena as being "over broad" and requesting "production of both protected materials in addition to non-protected materials." However, in Relator's brief, it has abandoned all of those contentions except that the subpoena duces tecum requires the production of innocent patients' medical records as well as those of N.H., contrary to the physician-patient privilege under § 491.060(5). We do not consider any issues which have been abandoned or waived by the failure to raise them. ⁵

Additionally, Relator's only point relied on is premised on the physician-patient privilege. "The questions for decision on appeal are those stated in the Points Relied On. A question not there presented will be considered abandoned. Issues to which an appellant alludes only in the argument portion of the brief are not presented for review." Greene County Concerned Citizens v. Board, 873 S.W.2d 246 (Mo.App.1994) (citations omitted).

At common law there were no medical privileges. Brandt v. Medical Defense Associates, 856 S.W.2d 667, 669 (Mo.1993). "Claims of privilege present an exception to the general rules of evidence which provide that all evidence, material, relevant and competent to a judicial proceeding shall be revealed if called for. As such, they are carefully scrutinized." State v. Beatty, 770 S.W.2d 387, 391 (Mo.App.1989). The physician-patient privilege in Missouri is created by § 491.060(5) which specifically states:

The following persons shall be incompetent to testify:

(5) A physician licensed under Chapter 334, RSMo ... concerning any information which he may have acquired from any patient while attending him in professional character, and which information was necessary to enable him to prescribe and provide treatment for such patient as a physician....

The physician-patient privilege applies both in civil and in criminal cases. Beatty, Id. at 391, and relates to physicians, State v. Shirley, 731 S.W.2d 49, 52 (Mo.App.1987), and nurses when acting under the direction of a physician or assisting him in treating his patient. Id. at 53. The privilege also applies to medical records. Leritz v. Koehr, 844 S.W.2d 583, 584 (Mo.App.1993). The privilege can only be waived by the patient and the doctor must protect the patient by asserting the privilege when applicable. St. Louis Little Rock Hosp., Inc., v. Gaertner, 682 S.W.2d 146, 151 (Mo.App.1984). More recently the Missouri Supreme Court has determined that while § 491.060(5) creates only a testimonial privilege relating to the disclosure of confidential medical information by testimony in court or by formal discovery, there also exists a fiduciary duty of confidentiality not to disclose any medical information received in connection with the treatment of the patient. Brandt, 856 S.W.2d at 669.

However, this medical privilege is not absolute and has been modified or made inapplicable by the legislature in certain types of cases. ⁶

Missouri courts have also held that the physician-patient privilege does not prevent disclosure of information that is unnecessary for treatment such as the name of the patient or the time or place of treatment. State ex rel. Husgen v. Stussie, 617 S.W.2d 414, 415-16 (Mo.App.1981); Gonzenbach v. Lasky, 641 S.W.2d 430, 432 (Mo.App.1982) [furnishing identity of health care provider who had treated patient.] In Price v. Price, 311 S.W.2d 341, 349 (Mo.App.1958), the court stated that the privilege did not attach to testimony that a patient had been involuntarily committed to the mental hospital where the psychiatrist was employed. It does not protect against the disclosure of information acquired in the course of physician-patient relationship which was not for the purpose of prescribing or providing treatment. Thus in State v. Lewis, 735 S.W.2d 183, 187 (Mo.App.1987), statements made by defendant in response to doctor's questions in which defendant stated that he had been the driver, not the passenger, in a vehicle involved in a fatal accident were not encompassed within the privilege because defendant's medical treatment did not depend on the answer. In State ex rel. Hayter v. Griffin, 785 S.W.2d 590, 595-96 (Mo.App.1990), there was no privilege which attached for information acquired during a physical examination of a truck driver which had been conducted "not for the...