State v. State Bd. of Registration for the Healing Arts, WD 84394

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Alok Ahuja, Judge
• Citation: 641 S.W.3d 250
• Parties: STATE of Missouri EX REL. John L. PUTNAM, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS and the Administrative Hearing Commission, Respondents.
• Docket Number: WD 84394
• Decision Date: 07 December 2021

641 S.W.3d 250

STATE of Missouri EX REL. John L. PUTNAM, M.D., Appellant,
v.
STATE BOARD OF REGISTRATION FOR the HEALING ARTS and the Administrative Hearing Commission, Respondents.

WD 84394

Missouri Court of Appeals, Western District.

Filed: December 7, 2021
Motion for Rehearing and/or Transfer to Supreme Court Denied February 1, 2022
Application for Transfer Denied April 5, 2022

David F. Barnett, Terry M. Jarrett, Douglas L. Healy, Jefferson City, Penny Speake, Springfield, for appellant.

Adam G. Grayson, Jefferson City, for respondent.

Before Special Division: Mark D. Pfeiffer, P.J., and Alok Ahuja and Thomas N. Chapman, JJ.

Alok Ahuja, Judge

The State Board of Registration for the Healing Arts has filed a complaint with the Administrative Hearing Commission (the "Commission" or "AHC"), seeking to discipline the medical license of Dr. John L. Putnam. Dr. Putnam filed a petition for a writ of prohibition in the Circuit Court of Cole County, alleging that in the administrative proceeding the Board was seeking discovery of medical records protected by the physician-patient privilege, and of information which constituted attorney work product. The circuit court refused to issue a permanent writ of prohibition. Dr. Putnam appeals. We affirm in part and reverse in part.

641 S.W.3d 254

Factual Background

On January 8, 2019, the Board filed a complaint with the AHC, seeking to discipline Dr. Putnam's medical license. The Board's complaint alleged that Dr. Putnam provided care and treatment to five patients which might be dangerous or harmful; improperly prescribed controlled substances to those patients; and failed to maintain complete records of the treatment he provided. In discovery before the Commission, the Board sought production of the medical records associated with Dr. Putnam's treatment of the five patients. The Board also propounded interrogatories which asked Dr. Putnam to disclose whether he had obtained any oral or written statements from the relevant patients, including "the substance" of any such statements; to identify all persons with knowledge of facts relevant to the proceeding, including "the subject and substance of each such person's knowledge"; and to identify all fact witnesses whom Dr. Putnam intended to call at trial. Dr. Putnam objected to producing the requested medical records under the physician-patient privilege. He also objected to the relevant interrogatories on the basis of the attorney-client privilege and the protection for attorney work product.

The Board filed a motion to compel Dr. Putnam to provide the documents and information it had requested. The Commission granted the Board's motion to compel. Dr. Putnam then filed a petition for a writ of prohibition in the circuit court, seeking to prevent the AHC from compelling him "to disclose information regarding his patients, privileged communications with his attorneys, or the work-product of his attorneys." The circuit court issued a preliminary writ of prohibition. After receiving full briefing and oral argument from the parties, however, the court ultimately denied Dr. Putnam's request for a permanent writ, and quashed the preliminary writ it had previously issued.

Dr. Putnam appeals.¹

Standard of Review

Writs of prohibition are limited to the "fairly rare" situations where (1) the court or tribunal exceeded its personal or subject matter jurisdiction, (2) the court or tribunal lacked the power to act as it did, or (3) "absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available[,]" or there is an issue of law that will likely escape review on appeal and cause considerable hardship or expense to the aggrieved party.

State ex rel. Rosenberg v. Jarrett , 233 S.W.3d 757, 760 (Mo. App. W.D. 2007) (quoting State ex rel. Riverside Jt. Venture v. Mo. Gaming Comm'n , 969 S.W.2d 218, 221 (Mo. 1998) ). "When a party has been directed to produce privileged information, a writ of prohibition is an appropriate remedy because an appeal cannot remedy the improper disclosure." State ex rel. Malashock v. Jamison , 502 S.W.3d 618, 619 (Mo. 2016) ; accord State ex rel. Becker v. Wood , 611 S.W.3d 510, 513 (Mo. 2020).

A writ of prohibition is discretionary. Rosenberg , 233 S.W.3d at 760. Accordingly, we review the circuit court's denial of writ relief for an abuse of discretion, to the extent that Dr. Putnam preserved his appellate arguments in the circuit court and before the Commission. Id. A circuit court abuses its discretion when

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its "ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Hancock v. Shook , 100 S.W.3d 786, 795 (Mo. 2003). "If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion." Id. (citation omitted). "[T]he trial court necessarily abuses its discretion where its ruling is based on an erroneous interpretation of the law." Bohrn v. Klick , 276 S.W.3d 863, 865 (Mo. App. W.D. 2009).

Dr. Putnam concedes that his first and second Points on appeal were not preserved before the AHC or the circuit court, and are therefore subject to review solely for plain error. Plain error review is "rarely ... granted in civil cases." Mayes v. Saint Luke's Hosp. , 430 S.W.3d 260, 269 (Mo. 2014) (citation omitted). We will find plain error "only if there are substantial grounds for believing that the [circuit] court committed error that is evident, obvious, and clear and where the error resulted in manifest injustice or miscarriage of justice." Id. (citation and internal quotation marks omitted); Rule 84.13(c).

Discussion

Dr. Putnam raises five Points on appeal. First, he argues the circuit court plainly erred in quashing the preliminary writ because § 334.097.6² requires the Board to secure written authorization from a patient or issue a subpoena to obtain the patient's medical records – neither of which occurred here. Second, he argues that the patient medical records the Board sought were not discoverable under Supreme Court Rule 56.01(b)(1). Third, Dr. Putnam argues that compelling him to produce patient medical records to the Board would require him to violate the fiduciary duty of confidentiality which he owes to his patients, and would potentially subject him to civil liability. In Points IV and V, Dr. Putnam argues that he was justified in refusing to respond to certain interrogatories, because the Board sought information protected by the attorney work product doctrine.

We reject Dr. Putnam's first three Points, which claim that the Board lacks authority to obtain patient medical records from him through discovery. We conclude, however, that the Board's interrogatories improperly asked Dr. Putnam to disclose the work product of his attorneys, when the interrogatories requested that he disclose the "substance" of statements his legal representatives obtained during their investigation and defense of the disciplinary proceeding. We accordingly affirm the circuit court's denial of a writ of prohibition in part, but reverse its refusal to issue a writ precluding the Commission from compelling Dr. Putnam to disclose attorney work product.

I.

Dr. Putnam's first Point argues that the circuit court plainly erred in quashing the preliminary writ because § 334.097.6 provides that "[t]he board shall not obtain a patient medical record without written authorization from the patient to obtain the medical record or the issuance of a subpoena for the patient medical record."

Notwithstanding § 334.097.6, the circuit court found that the requested patient records were discoverable under § 334.100.7. Section 334.100.7 states:

641 S.W.3d 256

In any investigation, hearing or other proceeding to determine a licensee's or applicant's fitness to practice, any record relating to any patient of the licensee or applicant shall be discoverable by the board and admissible into evidence, regardless of any statutory or common law privilege which such licensee, applicant, record custodian or patient might otherwise invoke. In addition, no such licensee, applicant, or record custodian may withhold records or testimony bearing upon a licensee's or applicant's fitness to practice on the ground of privilege between such licensee, applicant or record custodian and a patient.

Dr. Putnam argues that § 334.100.7 must be read in concert with § 334.097.6, and that, when the two statutes are considered together, the Board must secure a patient's written authorization or a subpoena to obtain medical records, even when the Board seeks the records in the context of the disciplinary proceedings contemplated by 334.100.7. We disagree.

Section 334.097.6 does not govern the Board's access to patient medical records in the course of disciplinary proceedings. Section 334.097 addresses physician recordkeeping generally. Thus, §§ 334.097.1 and .2 require that physicians "maintain ... adequate and complete patient record[s]," and specify the...