State ex rel. McCloud v. Seier, 60010

• Decision Date: 15 June 1978
• Docket Number: No. 60010,60010
• Citation: 567 S.W.2d 127
• Parties: STATE of Missouri ex rel. Marvin McCLOUD, Relator, v. A. J. SEIER, Judge 32nd Judicial Circuit, Division II, Respondent.
• Court: Missouri Supreme Court

Page 127

567 S.W.2d 127

STATE of Missouri ex rel. Marvin McCLOUD, Relator, v. A. J. SEIER, Judge 32nd Judicial Circuit, Division II, Respondent.

No. 60010.

Supreme Court of Missouri,En Banc.

June 15, 1978.

Wendell W. Crow, Ford, Ford, Crow & Reynolds, Kennett, for relator.

John M. Beaton, Kennett, for respondent.

RENDLEN, Judge.

This original proceeding in prohibition presents the question of whether plaintiff's treating physician may, at defendant's behest, be named in a personal injury action to examine plaintiff who, over his objection, must submit to such examination pursuant to Supreme Court Rule 60.

In the underlying damage action, defendant moved that plaintiff be ordered examined for defendant's purposes by Dr. Michael P. Casini, one of plaintiff's personal treating physicians for the injuries at bar. Plaintiff, who had furnished defendant the medical and hospital records pertaining to the treatment of his injuries, objected to such selection and offered to undergo examination "by any other" physician to be suggested by defendant or the court. Rejecting this offer defendant pressed her motion and plaintiff-relator, when advised of respondent's stated intention to order him to submit to a physical examination by Dr. Casini, petitioned here for prohibition. Our preliminary rule issued and for reasons we now discuss, the writ is made permanent.

Generally the purpose of Rule 60 ¹ providing for medical examinations in actions involving the physical condition of a party, is to eliminate uncertainty concerning the medical aspects of the cause and permit the preparation of an intelligent and informed defense. It has been stated that this procedure provides a basis for obtaining, as nearly as possible, "the exact and full truth concerning the matters in controversy, in order that (the court) may bestow on litigants equal and exact justice." 25A C.J.S. Damages § 174(3). However, we deem it disruptive of the judicial process for the court to call upon plaintiff's ² treating physician to serve as the defendant's examining physician.

Plaintiff, by bringing suit for personal injuries, placed his physical condition in issue and thus is deemed to have waived the statutory physician-patient privilege, State ex rel. McNutt v. Keet, 432 S.W.2d 597 (Mo. banc 1968), but we have found no case nor has authority been cited sanctioning the appointment of plaintiff's treating physician as the examiner for defendant's purposes and requiring plaintiff to submit to such examination. Notwithstanding the dilution of the privilege by the application of the principle of "waiver" in McNutt, "(a) physician occupies a position of trust and confidence as regards his patient a fiduciary position. It is his duty to act with the utmost good faith. This duty of the physician flows from the relationship with his patient and is fixed by law . . . ." Moore v. Webb, 345 S.W.2d 239, 243 (Mo.App.1961). In Houghton v. West, 305 S.W.2d 407 (Mo.1957), a suit to cancel a warranty deed on grounds of mental incapacity and undue influence, the court held that evidence establishing defendant as "plaintiff's physician" was sufficient to establish a fiduciary relationship which carried into the parties' dealings beyond the medical treatment rendered. "The relationship is one of trust and confidence; it is a consensual relationship wherein the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient; and it is the duty of the physician to exercise the utmost good faith in dealing with his patient, not only in professional matters but in all other relationships." 70 C.J.S. Physicians and Surgeons, § 36, page 941. Moreover, as this duty contemplates the physician's undivided loyalty to his patient, such duty necessarily runs contrary to the dual allegiance that would result if the physician were employed and paid by his patient's adversary. The physician would per force be cast into a position of conflict.

Prior to 1943, it had been held that trial courts had inherent power to order, in a proper case, a physical or mental examination. Fullerton v. Fordyce, 121 Mo. 1, 25 S.W. 587 (1894); State ex rel. American Manufacturing Co. v. Anderson, 270 Mo. 533, 194 S.W. 268 (1917). By the laws of 1943, § 87, page 380 (now § 510.040, RSMo 1969), the legislature provided that the trial court in such proceedings might order a party to submit to a physical or mental examination by a physician "chosen by the party requesting the examination. . . ." and further that "(s)uch physician shall be deemed the witness of the party procuring the examination unless called as a witness in court by the opposing party." This procedural statute was superseded by Rule 60, effective April 1, 1960, which was amended to its present form January 1, 1975. The language of § 510.040, permitting the physician to be "chosen by the party (here defendant) requesting the examination" has in effect been eliminated by the Rule and replaced by a provision in subsection 60.01(a) that "(t)he order may be made only on motion for good cause shown and upon notice to the person against whom the order is sought and to all other parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made." While in practice it is customary for the moving party to suggest the name of an examining physician and the court to favorably consider such suggestion, selection of the examining physician and ordering plaintiff to submit to examination are matters for the trial court's determination. "The order may be made only on motion for good cause shown."

Rule 35 of the Federal Rules of Civil Procedure, similar in many respects to our Rule 60, is silent as to how the physician will be chosen and it is recognized that under the Federal Rule the moving party has no absolute right to name the examining physician. Stuart v. Burford, 42 F.R.D. 591 (N.D.Okla.1967); Liechty v. Terrill Trucking Co., 53 F.R.D. 590 (E.D.Tenn.1971). In Ohio, which by judicial decision has formulated procedures comparable to Rule 60.01(a), (although limited to actions "for damages for personal injuries") it has been held that the trial court abused its discretion in naming a physician suggested by counsel for the defendant when that counsel failed or refused to disclose certain business and social relationships between him and the doctor. Adkins v. Eitel, 2 Ohio App.2d 46, 206 N.E.2d 573 (1965). For reasons closely akin, the Iowa Supreme Court in constructing Rule 132 ³ of Iowa's Rules of Civil Procedure refused to name a doctor suggested by defendant when it was disclosed that the doctor was a client of defendant's attorney and the plaintiff had objected on this ground. Main v. Tony L. Sheston-Luxor Cab Co., 249 Iowa 973, 89 N.W.2d 865 (1958).

Although, as noted above, the choice of examining physicians is generally a matter within the sound discretion of the trial court, the Rule does not contemplate appointments of the type considered here. This is seen in the requirement of ...