Stempler v. Speidell

• Decision Date: 29 July 1985
• Citation: 100 N.J. 368,495 A.2d 857
• Parties: , 50 A.L.R.4th 699 Larry A. STEMPLER, individually and as General Administrator and Administrator ad Prosequendum of the Estate of Barbara Anne Stempler, deceased, Plaintiff- Appellant v. E. Allan SPEIDELL, M.D., Defendant-Respondent, and Barbara Conklin, Donna Wilchek, John Doe, Joe Roe, ABC, Inc., DEF, Inc., etc., Defendants.
• Court: New Jersey Supreme Court

Page 368

100 N.J. 368

495 A.2d 857, 50 A.L.R.4th 699

Larry A. STEMPLER, individually and as General Administrator and Administrator ad Prosequendum of the Estate of Barbara Anne Stempler, deceased Plaintiff- Appellant v. E. Allan SPEIDELL, M.D., Defendant-Respondent and Barbara Conklin, Donna Wilchek, John Doe, Joe Roe, ABC Inc., DEF, Inc., etc., Defendants.

Supreme Court of New Jersey.

Argued March 18, 1985.

Decided July 29, 1985.

William E. Schkeeper and Marc E. Lesser, Livingston, for plaintiff-appellant (Kronisch & Schkeeper, Livingston, attorneys).

Susan M. Sharko, Morristown, for defendant-respondent (Shanley & Fisher, Morristown, attorneys).

Timothy L. Barnes, Newark, submitted a brief on behalf of amicus curiae The Ass'n of Trial Lawyers of America (Barnes & Barnes, Newark, attorneys).

The opinion of the Court was delivered by

STEIN, J.

The issue in this medical malpractice and wrongful death action is whether the defendant's counsel, as an aid to discovery, has the right to attempt to interview decedent's physicians ex parte with respect to matters relating to the litigation.

I

The facts material to our resolution of this question are not disputed. In June, 1983, Larry Stempler, individually and as general administrator and administrator ad prosequendum of the Estate of Barbara Anne Stempler, deceased, brought this action against Dr. E. Allan Speidell and a number of fictitious defendants. An amended complaint identified two nurses as individual defendants.

Decedent consulted Dr. Speidell in August, 1981, complaining of pain, abdominal distension and constipation. Dr. Speidell diagnosed a fecal impaction and referred decedent to the emergency room of St. Barnabas Medical Center. Decedent was admitted to the hospital and treatment was initiated. Dr. Speidell was designated the attending physician. During the early morning hours of the day following her admission, Mrs. Stempler experienced difficulty breathing and failed to respond to stimuli. She was treated emergently for cardiac arrest. Dr. Speidell was notified and Mrs. Stempler was pronounced dead shortly after his arrival at the hospital that morning.

In preparing to defend the claims asserted against Dr. Speidell, his counsel ascertained that decedent had received medical care from a significant number of physicians and health care providers. Dr. Speidell's counsel requested that the plaintiff sign authorizations in order to induce such physicians and health care providers to release information concerning decedent to defendant's counsel. The plaintiff signed each of the authorizations, but only after plaintiff's counsel crossed out the portion of the text reading: "[T]his will further authorize you to discuss any and all information concerning any treatment by you or examinations performed by you concerning the undersigned." In its place, plaintiff's counsel inserted the following statement on each authorization form: "This does not authorize you to have any discussions concerning these records, my care or my claim, but is expressly limited to allowing you to provide copies or inspection of my records and x-rays."

On the assumption that the substituted language on the authorization forms would preclude direct interviews with the physicians who had treated decedent, defendant filed a motion with the Law Division to compel the plaintiff to execute unrestricted authorization forms. In support of the motion, defendant's counsel submitted an affidavit alleging that Dr. Clara J. Szekely, a psychiatrist who had treated decedent, advised the defendant's counsel that the restriction inserted in the authorization would prevent her from communicating with defendant's counsel concerning decedent. Specifically, the affidavit alleged that Dr. Szekely believed her records would be unintelligible without her interpretation, and she would not provide copies of them. According to defendant's counsel, Dr. Szekely was willing to furnish a written interpretation detailing her records, but only if plaintiff authorized her to do so.

Plaintiff resisted the motion to compel unrestricted authorizations since they would permit defendant's counsel to interview personally decedent's treating physicians, a procedure that allegedly is not authorized by our Court Rules. Although plaintiff authorized treating physicians to provide access to decedent's medical records, plaintiff contends that depositions are the only appropriate means by which the physicians may furnish additional relevant, unprivileged information to defendant's counsel without creating an undue risk of disclosing confidential information not related to the litigation.

The Law Division judge granted the defendant's motion to compel plaintiff to furnish unrestricted authorizations. After the Appellate Division denied leave to appeal, this Court granted plaintiff's motion for leave to appeal. R. 2:2-2(b).

Although the right claimed by defendant's counsel to conduct personal interviews with decedent's physicians is cast in a nontestimonial discovery context, plaintiff's objections to the interviews have their roots in the testimonial patient-physician privilege. N.J.S.A. 2A:84A-22.1 to -22.7. ¹ Plaintiff concedes that instituting suit extinguishes the privilege to the extent that decedent's medical condition will be a factor in the litigation. N.J.S.A. 2A:84A-22.4. ² However, as to those elements of decedent's prior medical history that are not relevant to the litigation, plaintiff asserts the continued viability of the privilege, contending that unsupervised ex parte interviews with decedent's treating physicians do not afford as complete protection against disclosure of privileged material as would be provided by depositions upon oral examination. See R. 4:14.

Because such interviews would take place in a nontestimonial context, no statute or Court Rule expressly precludes defense counsel from interviewing decedent's treating physicians regarding confidential communications. Moreover, even if the testimonial privilege could be imputed to such interviews, no statute or rule expressly precludes ex parte interviews concerning unprivileged communications, and the initiation of suit abrogates the privilege as to medical conditions pertinent to the litigation. However, as was the case with decedent's psychiatrist, treating physicians are not likely to cooperate with defense counsel in the absence of authorization from the patient. Accordingly, defense counsel in this case sought to compel plaintiff to furnish written authorization for interviews with decedent's treating physicians. The issue before us is whether plaintiff should be compelled to authorize such ex parte communication between defense counsel and decedent's physicians, as an aid to defendant's discovery, and if so, under what protective conditions. A resolution of this issue requires us to weigh the interests protected by the patient-physician privilege and the physician's professional obligation of confidentiality against the interests advanced by permitting defense counsel to conduct ex parte interviews with decedent's physicians regarding those conditions pertinent to the claims asserted in the litigation.

II

The patient-physician privilege was not recognized at common law in New Jersey, Hague v. Williams, 37 N.J. 328, 334-35, 181 A.2d 345 (1962), nor was it recognized under the common law in other jurisdictions. State v. Dyal, 97 N.J. 229, 235, 478 A.2d 390 (1984); McCormick's Handbook of the Law of Evidence, § 98 (2d ed. 1972) [hereinafter McCormick ]; 8 J. Wigmore, Evidence, § 2380 (McNaughton rev. 1961). Moreover, the original New Jersey Supreme Court Committee on the Revision of the Law of Evidence expressly rejected the adoption of the patient-physician privilege, State v. Dyal, supra, 97 N.J. at 235-36, 478 A.2d 390, citing Report of the Committee on the Revision of the Law of Evidence to the Supreme Court of New Jersey, R. 27, drafter's comment, at 71-72, and it has never been adopted as a Rule of Evidence by this Court. State v. Dyal, supra, 97 N.J. at 235-36, 478 A.2d 390; State v. Soney, 177 N.J.Super. 47, 57, 424 A.2d 1182 (App.Div.1980), certif. den., 87 N.J. 313, 434 A.2d 67 (1981). Thus, in New Jersey the privilege is of relatively recent statutory origin. L.1968, c. 185 (codified at N.J.S.A. 2A:84A-22.1 to -22.7).

The testimonial privilege is justified because it encourages candid communication between patient and doctor without fear of unauthorized disclosures. McCormick, supra, § 98 at 213; see J. Wigmore, supra, § 2380a, at 828-29.

It has been said that the purpose of the patient-physician privilege is to enable the patient to secure medical services without fear of betrayal and the unwarranted embarrassing and detrimental disclosure in court of information which might deter the patient from revealing his symptoms to the doctor to the detriment of his health. See Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307, 312 (Sup.Ct.1977); State v. Staat, 291 Minn. 394, 192 N.W.2d 192, 195 (Sup.Ct.1971). [State in Interest of M.P.C., 165 N.J.Super. 131, 136, 397 A.2d 1092 (App.Div.1979).]

Critics of the privilege maintain that the vast majority of communications between patient and physician are not intended to be strictly confidential, and as to those that are, they argue that the absence of privilege would not deter patients from frank communication with their physicians because their primary concern is to secure proper medical attention. J. Wigmore, supra, § 2380a, at 829-30; McCormick, supra, § 105, at 225.

This Court previously has articulated the major factors that argue against a broad application of the patient-physician privilege:

The inevitable effect of allowing the privilege * * * is the withholding of evidence, often of the most reliable and probative kind, from the trier of fact. To the extent that the privilege is honored, it may therefore undermine the search for truth in the...