State ex rel. Miller v. Tackett

• Decision Date: 02 May 1961
• Docket Number: No. 6943,6943
• Citation: 1961 NMSC 53,68 N.M. 318,361 P.2d 724
• Parties: STATE of New Mexico ex rel. Jerry MILLER, Petitioner, v. Honorable Paul TACKETT, District Judge of Division V for the Second Judicial District in and for Bernalillo County, State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 724

361 P.2d 724

68 N.M. 318

STATE of New Mexico ex rel. Jerry MILLER, Petitioner, v. Honorable Paul TACKETT, District Judge of Division V for the

Second Judicial District in and for Bernalillo

County, State of New Mexico,

Respondent.

No. 6943.

Supreme Court of New Mexico.

May 2, 1961.

Bingham & Klecan, Albuquerque, for petitioner.

Modrall, Seymour, Sperling, Roehl & Harris, Leland S. Sedberry, Jr., Albuquerque, for respondent.

MOISE, Justice.

Petitioner is the claimant in an action filed under our workmen's compensation act for the recovery of benefits provided therein. Respondent is the Judge before whom the cause is pending.

After issue was joined in the compensation case, the petitioner's deposition was taken at which time counsel for the employer was refused permission to talk to one Dr. Coffey, a physician who had treated petitioner, and petitioner, through his counsel, stated he would refuse to sign a medical authorization permitting such interview.

It appears that petitioner had been seen by three doctors in addition to Dr. Coffey, and that these three doctors had been paid by the employer. However, not being satisfied, petitioner had gone to Dr. Coffey for treatment, and Dr. Coffey had not been paid by the employer although payment of his charges were sought in the compensation case pending. Neither had any compensation been paid by the employer to petitioner. A motion was filed in the compensation case asking that the court require petitioner to give an authorization to the defendants to talk to petitioner's doctors and to obtain copies of any medical records concerning petitioner's alleged injuries. After a hearing before respondent, petitioner was ordered to sign a medical authorization in the form attached to the order, and which read as follows:

'I do hereby authorize any doctor that has ever treated or examined me, as well as any hospital in which I have ever been a patient, to release any information they may have concerning my physical condition and treatment to Modrall, Seymour, Sperling, Roehl & Harris, Attorneys at Law, Simms Building, Albuquerque, New Mexico including medical reports, records, x-rays, test results and findings in general relating to my physical or mental condition.

'I hereby expressly waive any laws, regulations and rules of ethics which might prevent any hospital, doctor or other person who has treated or examined me in a professional capacity or otherwise from disclosing such information.

'I shall appreciate your cooperation with these attorneys and request that you freely communicate with them, provided of course the same is without expense to me.'

Petitioner promptly sought relief from this court to prevent respondent from taking further action in connection with the order to furnish the medical authorization. We issued our alternative writ of prohibition to which respondent has filed his response.

By his response respondent raises three questions, viz., (1) is the case a proper one for prohibition, (2) is it a proper case for the exercise of superintending control, and (3) did respondent have discretionary power which he exercised in directing petitioner to sign the authorization?

Concerning the last question raised, we need only call attention to Sec. 20-1-12(d) and (f), N.M.S.A.1953, which read as follows:

'(d) A person duly authorized to practice physic or surgery, or a professional or registered nurse, cannot be examined without the consent of his patient as to any communication made by his patient with reference to any real or supposed venereal or loathsome disease or any knowledge concerning such disease obtained by personal examination of such patient; nor shall any doctor or nurse employed by a workmen's compensation claimant be examined relating to a workmen's compensation claim without the consent of his patient as to any communication made by his patient with reference to any physical or supposed physical disease or injury or any knowledge obtained by personal examination of such patient except in instances where the doctor has examined or treated the patient at the expense of the employer, and such payment is consented to by the patient. (Emphasis supplied). * * *

'(f) If a person offer himself as a witness and voluntarily testify with reference to the communications specified in this act (section), that is to be deemed a consent to the examination of the person to whom the communications were made as above provided.'

The parties agree that the language of the statute is clear and unambiguous. However, respondent points out that in the compensation case, payment of Dr. Coffey's bill is being sought, and asserts that this removes the privilege. However, the clear language of the statute is to the effect that the examination or treatment of the patient must have been 'at the expense' of the employer. That it isn't at his expense, at least until the court has determined that it should be would seem to be apparent. See Pate v. Makin Drilling Co., 66 N.M. 402, 349 P.2d 121 and State ex rel. J. P. (Bum) Gibbins, Inc. v. District Court of Fifth Judicial District, 65 N.M. 1, 330 P.2d 964. Where payment of the doctor is sought, as in the case before us, we assume that the employer could have agreed thereto in the case seeking the same, and upon making payment it would have become his expense, and he would have been entitled to the information which he sought. However, as we understand it, he denies liability for workmen's compensation and has not paid Dr. Coffey.

Respondent also asserts that by virtue of Rule 35(a) and (b), Sec. 21-1-1(35)(a) and (b), N.M.S.A.1953, the petitioner should be held to have waived the privilege accorded by Sec. 20-1-12, supra. He agrees that Rule 35 applies only in situations where persons are examined pursuant to order of court, but argues that since the employer paid three doctors and the reports made by these doctors were requested by and supplied to petitioner Rule 35(b) should be construced to the effect that petitioner has waived the privilege here asserted. Suffice it to say concerning this argument that the rule referred to applies only where an examination has been ordered by the court pursuant to the rule and the person examined has requested delivery of a copy of the report of the examination made. There is nothing in the language of the rule that even remotely suggests the interpretation contended for by respondent. Rule 35(b)(2), so far as material reads, 'By requesting and obtaining a report of the examination so ordered * * *, the party examined waives any privilege * * *.' From the language quoted there can be no room for question that the report which the person examined must request in order for a waiver to result is the report made following the examination ordered by the court, upon good cause shown and upon motion and notice as provided in Rule 35(a). The argument is without merit.

Respondent states that by filing suit the privilege was waived. He cites no authority, and such assertion cannot be reconciled with the language of Sec. 20-1-12, N.M.S.A.1953, quoted above.

No serious contention is made that petitioner has voluntarily testified so as to have been deemed to have consented under the provisions of Sec. 20-1-12, N.M.S.A.1953, supra.

Accordingly, we are faced with a situation where the Judge before whom the workmen's compensation case is pending has ordered the claimant therein to do something which he is clearly not required to do under the statute which the legislature passed for his protection, and something which the court was not authorized to do.

It is respondent's position that since he had jurisdiction of the parties and of the subject matter of the workmen's compensation case, prohibition would not be entertained by us, citing numerous decisions of this court. It is true that the court has so stated the rule in several decisions, one of which is Gilmore v. District Court of Fifth Judicial District, 35 N.M. 157, 291 P. 295. However, there is a corollary to this rule that...