Tucson Medical Center Inc. v. Rowles

• Decision Date: 29 March 1974
• Docket Number: No. 2,CA-CIV,2
• Citation: 21 Ariz.App. 424,520 P.2d 518
• Parties: TUCSON MEDICAL CENTER INCORPORATED, a corporation, Petitioner, v. Eugene P. ROWLES et al., Respondents, and The Honorable Lee Garrett, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Division II thereof. 1591.
• Court: Arizona Court of Appeals

Page 518

520 P.2d 518

21 Ariz.App. 424

TUCSON MEDICAL CENTER INCORPORATED, a corporation, Petitioner, v. Eugene P. ROWLES et al., Respondents and The Honorable Lee Garrett, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Division II thereof.

No. 2 CA-CIV 1591.

Court of Appeals of Arizona, Division 2.

March 29, 1974.

Rehearing Denied April 25, 1974.

Chandler, Tullar, Udall & Richmond, Holesapple, Conner, Jones, McFall & Johnson,[21 Ariz.App. 425]

by G. Marshall Jones, Tucson, for petitioner

Miller, Pitt & Feldman, P.C. by Stanley G. Feldman, Tucson, for respondents Rowles and Garrett.

OPINION

HATHAWAY, Chief Judge.

Petitioner Tucson Medical Center, Inc. (hereinafter referred to as TMC) has brought this special action requesting us to vacate a superior court order granting respondents'-plaintiffs' 'Motion for Order Compelling Discovery.' We assume jurisdiction.

Plaintiffs Eugene P. Rowles, Marie P. Rowles and Eugene Thomas Rowles sued TMC on the theory that it was negligent during an emergency situation just prior to the delivery of Mrs. Rowles' baby. Mrs. Rowles had some serious childbirth complications before her obstetrician arrived at the hospital. Plaintiffs seek to show that TMC had a duty to contact another obstetrician who was on the premises at the time of the emergency. They are informed that Dr. David J. Trisler was in the hospital at or about the time of the emergency in connection with the delivery of a baby born to a woman to whom we will refer as Jane Doe. In order to ascertain the exact movements of Dr. Trisler on the date in question, plaintiffs seek to imspect the medical records of Jane Doe.

On June 21, 1973, one of plaintiffs' attorneys deposed Richard H. Ross, the custodian of records of TMC who had brought the medical records of Jane Doe pursuant to a subpoena duces tecum. He answered certain questions, but on advice of counsel refused to allow plaintiffs' counsel to inspect the records.

TMC alleges that the physician-patient privilege applies to certain data contained in the subject records, that Dr. Trisler would be prohibited by A.R.S. § 12--2235 from testifying as to this data, and that TMC, as the custodian of these records, is therefore under a duty not to disclose this information. TMC also contends that since information relating to the location of Dr. Trisler during the emergency would not be privileged as a 'communication' from patient to physician under A.R.S. § 12--2235, such information could be discovered by interrogatories or deposition without the necessity of an inspection of the records.

Plaintiffs-respondents assert that there is no privilege for hospital records, that a hospital has no standing to assert the physician-patient privilege, that in any case the hospital has waived the privilege by Mr. Ross' testimony on deposition as to certain portions of the records, and that TMC has made no showing that any part of the hospital record is privileged.

The question of privilege is determinative in this instance since privileged matter is not discoverable. A.R.C.P. Rule 26(b)(1), 16 A.R.S.; Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764 (1958).

A.R.S. § 12--2235 provides as follows:

'In a civil action a physician or surgeon shall not, without the consent of his patient, be examined as to any communication made by his patient with reference to any physical or supposed physical disease or any knowledge obtained by personal examination of the patient.'

Thus, our legislature has determined that the public good is best served by rendering communications made by patients to their physicians privileged. Lewin v. Jackson, 108 Ariz. 27, 492 P.2d 406 (1972). The purpose behind this legislative grant of privacy is to insure that 'the patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor.' Lewin v. Jackson, supra, 108 Ariz. at 31, 492 P.2d at 410. The privilege protects the entire relationship which includes the physician's advice, diagnosis, and instruction. Udall, Arizona Law of Evidence, § 93 (1960).

Our first consideration is whether hospital records fall within this privilege. In 8 J. Wigmore, Evidence § 2382 (McNaughten rev'd ed. 1961), the author states, 'The privilege is universally agreed to include the physician's entries in medical records of a Hospital.' (Emphasis in orig.) There is a total absence of any authority to the contrary dispute the fact that the statutory physician-patient privilege provisions of most jurisdictions are similar to A.R.S. § 12--2235 in that they contain no specific reference to hospital records. In State ex rel. Benoit v. Randall, 431 S.W.2d 107 (Mo.1968), the Supreme Court of Missouri reasoned as follows:

'This is undoubtedly the rule as announced by all the authorities, and, that being so, it seems that it must follow as a natural sequence that when the physician subsequently copies that privileged communication upon the record of the hospital, it still remains privileged. If that is not true, then the law which prevents the hospital physician from testifying to such matters could be violated both in letter and spirit, and the statute nullified, by the physician copying into the record all the information acquired by him from his patient, and then offer or permit the record to be offered in evidence containing the diagnosis, and thereby accomplish, by indirection, that which is expressly prohibited in a direct manner.' 431 S.W.2d at 109 (citations omitted)

In Sims v. Charlotte Liberty Mutual Insurance Co., 257 N.C. 32, 125 S.E.2d 326 (1962), the Supreme Court of North Carolina stated:

'We have not heretofore had occasion to apply the statute (G.S. § 8--53, creating physician-patient privilege) in a hospital records case. Frankly we perceive no difference in the application of the statute between examination and treatment of the patient by a physician or surgeon in a hospital and in a home. The information is no less privileged that it was obtained in a hospital.' 125 S.E.2d at 330.

In Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349 (1958), the Supreme Court of Iowa quoted with approval from 58 Am.Jur., Witnesses, § 543, p. 304, as follows:

'Although, according to many courts, hospital records may be admitted in evidence On behalf of a patient in a proper case, in the absence of a waiver of the statutory privilege the records of a hospital or asylum, whether public or private, are inadmissible against a patient or his privy in interest, being within statutes making a physician incompetent to testify regarding matters of which he acquires knowledge While acting in his professional capacity. The introduction of the records would obviously be an evasion of such statutes, for although the physician would not actually testify, yet the privileged matter sought to be barred would in fact be effectually placed in evidence . . .' (89 N.W.2d at 354 Emphasis in original)

And in Unick v. Kessler Memorial Hospital, 107 N.J.Super. 121, 257 A.2d 134 (1969) the court in applying the privilege to hospital records, gave the following explanation:

'The recording of confidential communications between physician and patient in official hospital records in no way diminishes the confidential nature of the communications. To find that the written hospital records sought by plaintiffs are not covered by the privilege, as an oral communication would plainly be, would be to frustrate the intent of the Legislature in enacting a physician-patient privilege in the first instance.' (257 A.2d at 136)

See also Franklin Life Ins. Co. v. William J. Champion and Co., 350 F.2d 115, 130 (6th Cir. 1965); Heinemann v. Mitchell, 8 Ohio Misc. 390, 220 N.E.2d 616, 617 (1964); People v. Lapsley, 26 Mich.App. 424, 182 N.W.2d 601, 603 (1970); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245, 252 (1947); Carlton v. Superior Court for County of Los Angeles, 261 Cal.App.2d 282, 67 Cal.Rptr. 568, 68 Cal.Rptr. 469 (1968); Montwill Corporation v. Lefkowitz 66 Misc.2d 724, 321 N.Y.S.2d 975 (1971).

In determining the effect of A.R.S. § 12--2235 upon the admissibility or discovery of hospital records, we must avoid a construction which would render the statutory privilege meaningless or of no effect. ¹ City of Phoenix v. Superior Court, 101 Ariz. 265, 419 P.2d 49 (1966); State v. Clifton Lodge No. 1174, Ben. & Pro.Ord. of Elks, 20 Ariz.App. 512, 514 P.2d 265 (1973). We take judicial notice of the fact that a great deal of medical practice occurs in hospitals and further note that hospitals require physicians to maintain extensive records of each patient to be filed with the hospital. In fact, regulations promulgated by the State Department of Health require hospitals to maintain certain records regarding each patient which would contain matters privileged under A.R.S. § 12--2235. ² In light of the above-quoted case law, together with the necessity that physicians maintain records of their hospital treatment, we find that the privilege granted by A.R.S. § 12--2235 would be rendered meaningless if it were destroyed the moment that a physician transcribed communications from a patient or knowledge he has obtained from his examination of a patient into hospital records. We therefore hold that evidence otherwise privileged under A.R.S. § 12--2235 does not become non-privileged merely because it is contained in hospital records.

We now turn to the question of whether TMC has standing to assert the privilege. It is clear under the foregoing statutory formulation of the privilege, that were the physician (also a nonparty) asked to produce the records, he would be Compelled to assert the privilege. When, as here, neither the physician nor the patient are present to assert the privilege, are we to hold, as plaintiffs urge us, that in effect there is no privilege because no one with standing to claim it under the terms of the statute is a party to the...