Thomas v. Harrison

• Decision Date: 30 September 1981
• Docket Number: No. 5374,5374
• Citation: 634 P.2d 328
• Parties: Marianne THOMAS, Appellant (Plaintiff), v. Myron HARRISON, M. D., Appellee (One of Defendants), Sweetwater County Memorial Hospital and James Hooker (Other defendants).
• Court: Wyoming Supreme Court

Page 328

634 P.2d 328

Marianne THOMAS, Appellant (Plaintiff), v. Myron HARRISON, M. D., Appellee (One of Defendants) Sweetwater County Memorial Hospital and James Hooker (Other defendants).

No. 5374.

Supreme Court of Wyoming.

Sept. 30, 1981.

Walter C. Urbigkit, Jr., and George A. Zunker, of Urbigkit & Whitehead, P.C., Cheyenne, for appellant.

Michael J. Sullivan and William F. Downes, of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellee.

Before ROSE, C. J., ^a and RAPER, ^b McCLINTOCK, ^c THOMAS and ROONEY, JJ.

ROONEY, Justice.

Appellant-plaintiff appeals from a judgment entered on a jury verdict which found appellee-defendant not negligent with reference to medical malpractice. The malpractice action was filed against appellee, against Sweetwater County Memorial Hospital, and against James Hooker, an employee of the hospital. It was premised on alleged negligence in the medical treatment afforded to appellant in connection with a Appellant words the issues on appeal as follows:

broken arm. A directed verdict was entered in favor of the hospital and James Hooker.

"A. Whether the trial court erred in ruling that reports by Dr. Harrison as an insured to his insurance carrier were not discoverable, thereby precluding their use in cross examination during pre-trial depositions and at trial, as well as precluding their use in trial preparation when it appeared in testimony at trial that there was a conflict as to when and how frequently medical attention was sought by the Appellant.

"B. Whether the trial court erred in ruling that reports prepared by Dr. Harrison and furnished to a medical review panel investigating an alleged claim of medical malpractice were not discoverable, thereby precluding their use in cross examination during pre-trial depositions and at trial, as well as precluding their use in trial preperation when it appeared in testimony at trial that there was a conflict as to when and how frequently medical attention was sought by the Appellant." (Emphasis added.)

Argument was presented to us and to the trial court as to each of these issues in two respects: (1) Were the reports protected from discovery by appellant because of an attorney-client privilege? and (2) Were they protected from such discovery as being the work product of appellee? The trial court ruled that protection existed on both grounds.

We affirm the judgment because protection from such discovery was afforded under the work product concept, i.e., we do not find an abuse of discretion by the trial court in its determination that appellant-plaintiff failed to show (1) a substantial need for the statements made by appellee-defendant to his insurance company or for the reports made by him to a medical review panel, and (2) that she was unable without undue hardship to obtain a substantial equivalent thereof by other means, as is required by Rule 26(b)(3), W.R.C.P. ¹ The trial court's ruling was in the form of a denial of appellant's motion for an order to compel discovery. The motion was made after the following interrogatories were posed by appellant to appellee and the following responses thereto were made by appellee:

"10. Have you made any statements to agents of your insurance company, or to any other person in relation to the incidents set forth in the Complaint filed herein? If so, please state the date said statement was given, the name of the person taking the statement, and the present location of such statement.

"ANSWER: No formal statements given though have had discussions with counsel and representatives of insurance company. Written statements dated February 23 and 24, 1977 were given to insurance carrier.

"11. Has any other physician, or panel of physicians reviewed this case and the treatment rendered by you therein, for any purpose whatsoever with a view toward determining the negligence or lack of negligence, or with a view toward critiquing the care provided by you. If so, please state the name of each such physician, or panel of physicians, when such review occurred, what, if any, reports were rendered as a result of such review of critiquing, and the present location of such reports.

"ANSWER: Yes, the panel was held in cooperation with the Wyoming State Medical Society, my attorneys and my insurance carrier. All information is work product and privilege is asserted."

Appellant's "Renewed Request for Production" was refused by appellee, and appellant then filed her motion to compel discovery.

The circumstances of this case are such that the determination of the propriety of the attempted discovery should be resolved on the basis of the failure of appellant to make the showing required by Rule 26(b)(3), W.C.R.P. ² necessary to obtain work-product material. It is unnecessary to consider application of subsection (b)(4) of Rule 26 ³ as it could pertain to obtaining "facts known and opinions held by experts," i.e. the medical review panel. The issues presented here on appeal have to do with statements and reports made by appellee. Although, in attempted discovery, appellant concerned herself with more aspects of the medical review panel than the reports of Dr. Harrison, the other aspects were not presented on appeal. Appellant words each of the issues on appeal, supra, as having to do with the "reports of Dr. Harrison."

The statements and reports sought by appellant are "documents and tangible things" which, if not privileged, are discoverable only under the conditions set forth in Rule 26(b)(3). ⁴

And it is upon consideration of this sub-subsection (Rule 26(b)(3)) as it pertains to the circumstances of this case that the trial court's ruling may be affirmed. Even if the statements to the insurance carrier were not privileged, they, and the reports furnished to the medical review panel, were "prepared in anticipation of litigation or for trial by or for * * * (appellee) or by or for * * * (appellee's) representative (including his attorney, consultant, surety, indemnitor, insurer or agent)" (emphasis added) as designated in Rule 26(b) (3). ⁵ Then, to be discoverable under the rule, two conditions must be met. One, it must be shown that the party seeking recovery "has substantial As appellant states the issues here presented, supra, the alleged necessity for the discovery was triggered by the fact that "it appeared in testimony at trial that there was a conflict as to when and how frequently medical attention was sought by the Appellant." The record reflects a sound basis for the refusal of the trial court to find such to be sufficient to satisfy the two conditions for the requested discovery. The material could not have been in "preparation" of the case for trial if the triggering occurred at the trial. Nor does the record support a showing that "the substantial equivalent of the materials" could not, or was not, obtained "without undue hardship."

need of the materials in the preparation of his case," and two, that such party "is unable without undue hardship to obtain the substantial equivalent of the materials by other means." The trial court found that neither of these conditions were met by appellant. The findings were proper under the circumstances of this case.

In truth, the times and frequency of the medical treatment (the information desired by appellant) were detailed by appellant in her testimony. A written chronology of such as prepared by her was introduced into evidence. Hospital records and appellee's office records were referred to and placed in evidence. The testimony was to the effect that appellant fell on March 11, 1976, and broke her arm. She went to the emergency room of the hospital where the break was set and a cast was placed on her arm by James Hooker, a medical assistant. Appellee first visited her the next day in the hospital. During the following month, appellant suffered pain with the arm and her fingers were swollen and discolored. She had several contacts, by telephone and in person, with James Hooker and appellee because of the pain. Appellee prescribed medicine for her, and the cast was trimmed and split about six times. It was replaced once by appellee. On April 14, 1976, appellant went to Hill Air Force Base where she consulted a Dr. Harold Jenson who arranged an appointment with an orthopedic surgeon, Dr. Adams. She subsequently received treatment at Hill Air Force Base, and, on July 27, 1976, Dr. Adams performed surgery on her arm to decompress the median nerve.

The only disagreement between appellant and appellee in their testimony ⁶ was in three respects: (1) Appellant testified to a number of telephone calls to appellee. Appellee could not recall all of them. Appellant's testimony was therefore unchallenged in this respect. (2) Appellant testified that Dr. Jenson prepared a note for appellee in which he suggested a course of treatment pending the operation including stellate blocks and that she communicated this information orally to appellee and also delivered the note to him. Appellee testified that he did not receive the information or the note. However, appellant testified that appellee stated he would not use the treatment anyway, inasmuch as "we don't do it that way." (3) Appellee testified that, on April 8, 1976, during a visit by appellant and her husband to his office (the last time appellee said he had contact with appellant) appellee told the husband that he didn't understand why appellant was still having pain and that she should see an orthopod. Appellant and her husband denied that appellee had recommended a consultation with an orthopod. They said that the contact with physicians at Hill Air Force Base was on April 13, 1976, and that their last contact with appellee was on April 11, 1976. ⁷

Whether or not the referral to an orthopod was by appellee and whether appellant's last contact with appellee was on April 8 or on April 11, 1976, an appointment was nonetheless made on April 13, 1976 for appellant to go to Hill Air Force...