State ex rel. Husgen v. Stussie
| Citation | 617 S.W.2d 414 |
| Decision Date | 24 March 1981 |
| Docket Number | No. 43448,43448 |
| Parties | STATE ex rel. Beverly A. HUSGEN, Relator, v. Hon. Harry J. STUSSIE, Respondent. |
| Court | Court of Appeal of Missouri (US) |
David L. Campbell, St. Louis, for relator.
David B. Freyman, Clayton, for respondent.
This is an original proceeding in mandamus. The issue presented is whether a party in a dissolution of marriage proceeding, who seeks custody of the children, can utilize the statutory physician-patient privilege to block discovery of medical evidence relating to that party's present and past history of psychiatric treatment.
This proceeding in mandamus emanates from a dissolution of marriage proceeding involving the custody of three unemancipated minor children. The petitioner-wife in her petition for dissolution of marriage alleged that her husband had committed assault upon her and their children and she requested custody of the children. The husband in his answer denied any allegation of mistreatment, alleged that his conduct had been exemplary, and requested the custody and control of the minor children born of the marriage.
On August 11, 1980, the wife propounded certain interrogatories to the husband concerning his physical and mental health. Specifically, the interrogatories in question are:
2. State whether or not Respondent has ever received any form of care or treatment with regard to any type of mental, nervous, or emotional illness or disorder. If so:
(a) State the names and addresses of all doctors, physicians, psychoanalysts, psychiatrists, or other persons from whom Respondent has received any treatment or examination.
(b) State the dates of said treatments or examinations and describe the treatment rendered.
(c) State the names and addresses of all hospitals, clinics or other institutions in which Respondent was confined or at which Respondent received treatment or examination.
(d) Please sign the attached medical authorization and insert the names and addresses of the doctors or the person and/or hospitals or other institutions.
3. State whether or not Respondent has ever received any form of care or treatment concerning the excessive use of drugs or alcohol. If so:
(a) State the names and addresses of all doctors, physicians, psychoanalysts, psychiatrists, or other persons from whom Respondent has received any treatment or examination.
(b) State the dates of said treatments or examinations and describe the treatment rendered.
(c) State the names and addresses of all hospitals, clinics or other institutions in which Respondent was confined or at which Respondent received treatment or examination.
(d) Please sign the attached medical authorization and insert the names and addresses of the doctors or the person and/or hospitals or other institutions.
The husband objected to these specific interrogatories on the ground that they requested privileged information, discovery of which would violate the physician-patient privilege as expressed in § 491.060, RSMo 1978. The wife filed a motion to compel discovery stating that the husband, by his request for custody, placed his mental health in issue and thereby waived his right to invoke the physician-patient privilege. The defendant judge ordered that the husband's objections to the discovery would be sustained unless the wife obtained affirmative relief from the court of appeals directing otherwise.
Thereupon, petitioner-wife filed her petition for writ of mandamus. We issued a preliminary writ of mandamus and the defendant judge filed his return thereto.
The physician-patient privilege has never been recognized in England nor at common law in the United States. Missouri was the second state to establish this privilege by statute in 1835. Specifically, § 491.060, RSMo 1978, enunciating this privilege states:
The following persons shall be incompetent to testify:
(5) A physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.
Applying this statute to the questioned interrogatories, it is clear that the first three subparts to each of the two interrogatories do not fall within the defined privilege. These questions merely request from the husband the name of any doctor, and the time and place of any treatments received. They do not concern information resulting from discussion or observation by the physician nor is it information which is necessary in order for the physician to prescribe for the husband. The primary policy behind the statute is to encourage full and frank disclosures to the medical advisers. Metropolitan Life Ins. Co. v. Ryan, 237 Mo.App. 464, 172 S.W.2d 269, 272 (1943). The information requested here does not involve any disclosures made to the physician and thus the first three subparts of the two interrogatories do not violate either the statute or its underlying policy. See Price v. Price, 311 S.W.2d 341 (Mo.App.1958); State v. Vardeman, 422 S.W.2d 400 (Mo.App.1967).
The last subparts of each of the two interrogatories present a different question. These involve the signing of medical authorization forms which would allow the release of records concerning the husband's medical treatment. Clearly these records fall within the statutory privilege of § 491.060, RSMo 1978. However, the history of this statute is that the privilege has never been held to be absolute. Klinge v. Lutheran Medical Center of St. Louis, 518 S.W.2d 157, 164 (Mo.App.1974). The privilege granted under the statute is personal and therefore may be waived by an individual. The...
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