Trans-World Investments v. Drobny
| Decision Date | 30 September 1976 |
| Docket Number | TRANS-WORLD,No. 2990,2990 |
| Citation | 554 P.2d 1148 |
| Parties | INVESTMENTS and Suburban Realty, Inc., Petitioners, v. Richard H. DROBNY, Respondent. Carol VERVICK and Larry Vervick, Petitioners, v. ANCHORAGE, a municipal corporation, Respondent. |
| Court | Alaska Supreme Court |
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.
The court is required to determine in these petitions whether, and to what extent, the physician-patient evidentiary privilege is waived by virtue of the patient filing a personal injury lawsuit. 1 Because the privilege in issue has been subject to diverse interpretations not only in Alaska's courts, 2 but in the United States District Court for the District of Alaska 3 as well, we feel compelled to review the cases at this time. 4
In the matter brought by petitioner Vervick, the parties jointly contend a vehicular accident took place on the 10th of December, 1975, between a truck driven by Carol Vervick and an Anchorage maintenance truck. As a result of this accident Mrs. Vervick sought and obtained medical treatment. Later, suit was filed in the nature of a personal injury action, naming Carol Vervick and her husband, Larry Vervick, as plaintiffs, and the Municipality of Anchorage as party defendant. As the litigation proceeded a motion was filed by Anchorage to waive the physician-patient privilege; and on the 16th of June, 1976, this motion was granted by Superior Court Judge Victor D. Carlson. It is the order granting this motion which forms the subject of the Vervick petition.
In the Trans-World Investments petition, the action arises out of an alleged slip and fall which purportedly took place on the 29th of January, 1976, as Richard Drobny exited an apartment building. After the filing of a personal injury action by Drobny against Trans-World Investments on the basis it owned or operated the premises which constituted the scene of the accident, defendant Trans-World moved for an order waiving the physician-patient privilege on the same basis and to the same scope as that granted in the Vervick v. Anchorage case. Superior Court Judge Eben Lewis entered an order; however, its terms were significantly different from those of the Vervick order, restricting inquiry to '. . . any matter which is relevant to bodily injuries: (1) complained of by Richard H. Drobny; and (2) received on or about January 29, 1976, allegedly the result of a slip and fall accident.' It is from this order that the Trans-World petition arises.
We begin by noting the physician-patient privilege has historically had as its justification the encouragement of freedom of disclosure by the patient, this so as to aid the physician in his diagnosis and treatment of injury or disease. 5 In order to achieve this objective, the privilege afforded the patient protection against embarrassment and invasion of privacy which might result form such a disclosure.
The application of the privilege, however, has fostered problems collateral to those it sought to cure. Serious problems in certain types of litigation, particularly those matters where the physical condition of the patient constitutes an issue of prime importance to the fact finder, have lead many commentators to question its value. Professor Wigmore has observed:
It is certain that the practical employment of the privilege has come to mean little but the suppression of useful truth-truth which ought to be disclosed and would never be suppressed for the sake of any inherent repugnancy in the medical facts involved. Ninety-nine per cent of the litigation in which the privilege is invoked consists of three classes of cases . . . ((1) actions on policies of life insurance where deceased's representations of his health are involved, (2) actions for bodily injury, and (3) testamentary actions where testator's mental capacity is involved) . . .. In all of these the medical testimony is absolutely needed for the purpose of learning the truth. In none of them is there any reason for the party to conceal the facts, except as a tactical maneuver in litigation. . . . In none of these cases need there be any fear that the absence of the privilege will subjectively hinder people from consulting physicians freely. The actually injured person would still seek medical aid . . ..
We are convinced that a rigid enforcement of the privilege under the facts of this case would serve no useful purpose and might result in injustice. 8
The facts alleged in these petitions for review indicate injuries of the hip and leg to respondent Drobny, as well as injuries to the back in the nature of a cervical strain to petitioner Vervick. These injuries are demonstrative of the type of case where the need for medical history is essential to the defense so that it may evaluate properly its case. The medical aspects of cases such as these must be evaluated in light of prior existing medical conditions, as well as prior injuries to the affected portion of the patient's body. This is necessary so as to allow the fact finder not only to determine the extent of the damages which were in fact caused by the injury in question, but further to avoid the perpetration of fraud upon the fact finder and the court.
On this point McCormick On Evidence (2d ed. 1972), § 105 at 228, is in accord and states:
More than a century of experience with the statutes (creating the privilege) had demonstrated that the privilege in the main operated not as a shield of privacy, but as the protector of fraud. Consequently the abandonment of the privilege seems the best solution. (Footnote omitted)
Today we reaffirm the holding of the Mathis case 9 and find a waiver of the physician-patient privilege based upon the filing of a personal injury lawsuit. 10 Further, we hold that the filing of a personal injury action waives the physician-patient privilege as to all information concerning the health and medical history relevant to the matters which the plaintiff has put in issue. 11 The scope of the waiver extends to all matters pertinent to the plaintiff's claim, including but not limited to those matters the relevancy of which is based on a historical or causal connection. 12
There is also present a dispute between the parties concerning the availability of informal discovery methods. Here petitioner Vervick challenges the defense's right to undertake discovery which is in the nature of private conferences with the treating physician in a matter being litigated, and contends that only formal discovery under the Rules of Civil Procedure is available to obtain such information. It is submitted that such discovery would carry with it the attendant formal requirements as set forth in the Rules of Civil Procedure.
We find no legal impediments in existence which limit informal methods of discovery, such as private conferences with the attending physicians, or the voluntary exchange of medical information by the parties. 13 In our opinion such informal methods are to be encouraged, for they facilitate early evaluation and settlement of cases, with a resulting decrease in litigation costs, and represent further the wise application of judicial resources.
This court has recently commented on the abuses of the formal discovery process in our courts and reminded the bench and bar that the intended purpose of our discovery process is to simplify trials, not complicate them. This court has additionally stressed that counsel should confer in good faith concerning discovery, and that information should be exchanged and requests complied with in a manner demonstrating candor and common sense. 14 We find these principles worth reiterating here.
The orders entered below shall be interpreted in conformity with this opinion, and as such those orders are affirmed. 15
I concur in the court's holdings as to the extent the physician-patient evidentiary...
To continue reading
Request your trial
-
Moses v. McWilliams
...ex parte interviews are less costly and time consuming than the alternative method, that is, formal discovery. Trans-World Investments v. Drobny, 554 P.2d 1148, 1152 (Alaska 1976); Lazorick, 195 N.J. Super. at 454-455, 480 A.2d at 229; accord Eli Lilly & Co., 99 F.R.D. at In State ex rel. S......
-
Heller v. Norcal Mutual Ins. Co., S034539
...139 F.R.D. 85; Coralluzzo v. Fass (Fla.1984) 450 So.2d 858; Doe v. Eli Lilly & Co. (D.D.C.1983) 99 F.R.D. 126; Trans-World Investments v. Drobny (Alaska 1976) 554 P.2d 1148, 1152), and in fact have directed plaintiffs to execute authorization forms to facilitate the interviews. These courts......
-
Stempler v. Speidell
...efficient and less expensive method of trial preparation. Doe v. Eli Lilly & Co., 99 F.R.D. 126 (D.D.C.1983); Trans-World Investments v. Drobny, 554 P.2d 1148 (Alaska 1976); see also Gailitis v. Bassett, 5 Mich.App. 382, 146 N.W.2d 708 (Ct.App.1966) (no reason given for allowing interview o......
-
Zaden v. Elkus
...Business Machines Corp. v. Edelstein, 526 F.2d at 43-44; cf. Gregory v. United States, 369 F.2d at 187-88; Trans-World Investments v. Drobny, 554 P.2d 1148, 1151-52 (Alaska 1976). "`The potential for influencing trial testimony is inherent in every contact between a prospective witness and ......