State ex rel. Lutman v. Baker
| Decision Date | 21 December 2021 |
| Docket Number | No. SC 99139,SC 99139 |
| Citation | 635 S.W.3d 548 |
| Parties | STATE EX REL. Darin LUTMAN, Relator, v. The Honorable M. Brandon BAKER, Respondent. |
| Court | Missouri Supreme Court |
Lutman was represented by Warren E. Harris of Taylor, Stafford, Clithero & Harris LLP in Springfield, (417) 887-2020.
The Murrell family was represented by Samuel M. Gonzalez and Andrew J. Gelbach of Andrew J. Gelbach PC in Warrensburg, (660) 747-5138.
Darin Lutman petitions this Court for a writ of prohibition to prevent the continued release of his medical records from Compass Health Network and Missouri Psychiatric Center. Lutman contends the circuit court erred by ordering the release of his medical records because his records were protected by the physician-patient privilege. Because Lutman has neither placed his medical conditions at issue nor taken any action sufficient to waive the physician-patient privilege, this Court's preliminary writ is now made permanent.
In September 2019, a vehicle driven by Lutman crossed the centerline on Missouri Highway 7 and struck a vehicle driven by Sondra Murrell. Sondra Murrell died as a result of the crash. Her grandson, D.M., was in her vehicle and allegedly sustained personal injuries.
Immediately after the accident, Lutman told investigating police officers he "blacked out," "fainted," or "had a heart attack" at the time of the accident. At a later date, Lutman wrote a letter to Sondra Murrell's family, apologizing for the accident and attempting to explain what happened. Lutman wrote, "I simply became [an] alcoholic and addicted to medication and lost control of my life." He went on,
Tanya Bush, Sondra Murrell's daughter, filed a wrongful death suit against Lutman. Timothy Murrell, Sondra Murrell's son and D.M.'s natural father, intervened individually and as D.M.'s next friend.1
On May 13, 2021, the Murrell family filed notices of depositions and subpoenas for Lutman's medical records with Compass Health Network and Missouri Psychiatric Center. In response, Lutman filed a motion to quash those depositions and subpoenas, arguing the requested information was protected by the physician-patient privilege. Lutman's motion emphasized he did not place his medical condition at issue in any pleading.
On May 20, 2021, the circuit court issued an order overruling Lutman's motion to quash and commanding Compass Health Network and Missouri Psychiatric Center to "produce and disclose all medical records and files in their possession related to Darin Lutman." (Emphasis added). The order stated, "The medical records at issue contain information relevant to the claims raised in the above-referenced case."
On Friday, May 21, 2021, Lutman filed a petition for writ of prohibition in the court of appeals, seeking to prevent the release of his medical records. Shortly after, Lutman's counsel e-mailed Bush's counsel to confirm all parties would treat Lutman's medical records as sealed pending a ruling from the court of appeals. Bush's counsel promptly agreed to treat the records as sealed for the time being. Later that day, the court of appeals denied Lutman's petition.
On Monday morning, May 24, 2021, Lutman's counsel e-mailed Bush's counsel to advise Lutman would be filing a writ petition with this Court and reiterated all parties should continue to treat Lutman's medical records as sealed. Bush's counsel responded by stating,
On May 25, 2021, Lutman filed a petition for writ of prohibition with this Court. On June 1, 2021, this Court issued a preliminary writ of prohibition commanding the circuit court to take no further action in this matter other than to show cause as to 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). Specifically, "[p]rohibition is an appropriate remedy when a party is ordered to produce material that is protected from discovery by some privilege." State ex rel. Stinson v. House , 316 S.W.3d 915, 918 (Mo. banc 2010).
Section 491.060(5)2 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 benefit of the patient 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.
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). Nonetheless, "[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 omitted); see also Fitzgerald v. Metro. Life Ins. Co. , 149 S.W.2d 389, 391 (Mo. App. 1941) ).
It is undisputed that: (1) Lutman's medical records fall within the scope of the physician-patient privilege; and (2) Lutman never expressly waived the privilege. The only question is whether Lutman placed his medical conditions in issue or took any other steps to constitute implied waiver of the privilege. The Murrell family argues Lutman waived the privilege through his statements to the investigating police officers immediately after the accident and in his letter to the Murrell family.
This Court addressed a similar challenge in Rodriguez , 996 S.W.2d at 54, in which the plaintiff was seriously injured when the vehicle in which she was a passenger lost control and rolled. The plaintiff sued the vehicle's manufacturer, Suzuki, and the vehicle's driver, Dubis. Id. In response, Suzuki brought a cross-claim against Dubis, alleging she was intoxicated. Id. Significantly, Dubis admitted to having consumed at least three sampler glasses and two full glasses of wine shortly before the accident. Id. at 61. Suzuki sought to discover the results of Dubis blood alcohol tests taken at the hospital immediately following the crash. Id. Dubis moved to quash Suzuki's requests, arguing the physician-patient privilege applied. Id. The circuit court sustained Dubis motions, and Suzuki appealed. Id.
On appeal, Suzuki argued the circuit court erred in quashing its discovery requests because Dubis waived her physician-patient privilege by: (1) testifying she was not intoxicated in rebuttal to Suzuki's offer of proof; (2) responding to questions concerning her intoxication on cross-examination; and (3) having her counsel elicit testimony from other witnesses about the issue of intoxication. Id. at 63.3 This Court rejected Suzuki's arguments, stating, "Suzuki has not demonstrated that Dubis waived her statutory privilege under any recognized theory." Id. This Court explained Dubis did not bring any action for injuries she suffered and did not plead any facts creating an issue about her medical condition. Id. "For the same reason that Dubis does not waive the privilege by filing an answer denying the allegations in Suzuki's cross-petition that she was intoxicated, s...
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