Ziegler v. Superior Court In and For Pima County, 2
| Decision Date | 15 September 1982 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 656 P.2d 1251,134 Ariz. 390 |
| Parties | Eleanor ZIEGLER, Petitioner, v. The SUPERIOR COURT of the state of Arizona, In and For the COUNTY OF PIMA, and the Honorable Robert O. Roylston, a Judge thereof, S.J. DeVito, D.O. and Margarite DeVito, his wife, Joseph Rogers, D.O., and Sheila Rogers, his wife, dba Cardiology Consultants, and Tucson General Hospital, Real Parties in Interest, Respondents. 4503. |
| Court | Arizona Court of Appeals |
Petitioner is the plaintiff in a pending medical malpractice action in Pima County Superior Court. The real parties in interest, Rogers and DeVito, doctors of osteopathy specializing in cardiology, and Tucson General Hospital, an Arizona corporation which operates an osteopathic hospital in Tucson, are defendants. The basis of petitioner's claim against the doctors was the unnecessary implantation of a pacemaker. Her claim against the hospital was for breach of its duty to supervise and control the administration of medical services within its facility in that it was aware or should have been aware that the doctors were committing acts of malpractice and misconduct in their treatment of her.
Subsequent to the filing of the complaint, the matter was referred to a medical liability review panel. A.R.S. § 12-567. Prior to the panel hearing, petitioner obtained 24 partial medical charts of previous patients of the two doctors from Tucson General Hospital. These charts were obtained pursuant to a December 10, 1980, order of this court in special action proceedings. The names and addresses of the 24 patients were deleted from the charts to preserve the doctor-patient privilege as ordered by this court.
The 24 partial medical charts were introduced against the hospital in the panel hearing. Petitioner's expert witnesses testified that 20 of the 24 medical charts represented medical malpractice by reason of unnecessary implantation of pacemakers. The medical liability review panel found for the petitioner and against both doctors, and for the hospital and against petitioner. In April 1981 Judge Robert Hooker was permanently assigned to this case.
Thereafter, the following proceedings occurred. In September 1981 this court declined to accept jurisdiction of a petition for special action filed by the doctors in which they sought an order requiring petitioner to return the 24 charts to the hospital and excluding the charts from the medical malpractice action. Judge Hooker then ordered the doctors to disclose all names on the 24 charts to petitioner whereupon the doctors filed a petition for special action in the Arizona Supreme Court. On October 6, the supreme court entered an order accepting jurisdiction and vacated the superior court direction for disclosure of patients' names and addresses.
On October 22, Judge Hooker ordered (a) that petitioner and defendants provide to the court and opposing counsel a list of names of those patients who had been contacted and who had consented to the use of their medical records and to being called as witnesses; (b) that the doctors provide to the court the names and addresses and means of contacting those patients not contained in the other list; (c) that the parties confer and agree, if possible, on a letter and consent form to be sent from the court to the patients; (d) that the letter and consent form would advise the patients that information from their medical records had been requested for use as evidence at trial, that each patient had the right to assert the physician-patient privilege, that each had the option of refusing to give consent to the use of his or her medical record, that each might consent with the stipulation that his or her name, address and any matters which would disclose the patient's identity be deleted and that the patient could consent to the disclosure of identity and to being contacted or interviewed regarding the possibility of being a witness; (e) that a ruling on the issue of whether the doctors could call any of the patients as witnesses at trial or whether the medical records of the 24 patients would be admissible would be reserved, and (f) that the trial was reset for February 3, 1982.
On October 29, petitioner filed a petition for special action in the supreme court, challenging the October 22 order. The supreme court accepted jurisdiction for the sole purpose of ruling on the portion of the order which required the doctors to provide to the court the names, addresses, and means of contacting the 24 former patients who had not consented to the use of their files and which also required all parties to confer and agree on a letter and consent form to be sent by the court to the patients soliciting their consent to the use of the information in their files. The supreme court, in vacating that portion of the October 22 order stated:
"In our judgment the attempt by the trial court to use the identity of the patient, even to achieve fairness between the litigants, violates the physician-patient privilege.
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The challenged order of the respondent court undermines the privilege by having the respondent doctors disclose the identity of the patients they had treated. Disclosure of such information even to the trial court is nevertheless disclosure which is not authorized. The former patients are entitled to be left to their privacy secure in the belief that their confidences, treatment, and records are protected from disclosure." Ziegler v. Superior Court in and for the County of Pima, 131 Ariz. 250, 640 P.2d 181, 182 (1982).
On January 25, 1982, Judge Hooker granted defendants' motion in limine to preclude petitioner from using the 24 medical charts at trial. On March 8, he reconsidered and ruled that petitioner could use the records against the hospital but not against the doctors. Judge Hooker subsequently recused himself and the case was permanently assigned to the respondent judge. A petition for special action was filed in the supreme court by the hospital requesting that, as to it, the March 8 order be vacated. The supreme court declined to accept jurisdiction whereupon petitioner and the hospital each filed a motion for reconsideration before the respondent judge seeking to have Judge Hooker's March 8 order changed. Petitioner had sought to use the medical charts at trial against both the doctors and the hospital. The hospital had sought to preclude their use at trial against the hospital.
The respondent judge ruled in favor of the hospital finding that although the records probably would be material to petitioner's claim against the hospital, the above-quoted language of the supreme court in its opinion of January 15 appeared to apply equally to the claims against both the doctors and the hospital. Counsel for petitioner were ordered to return the records to designated defense counsel. This order is challenged in this special action.
At the conclusion of oral argument, we determined that intervention by special action was appropriate and therefore assumed jurisdiction, indicating that our opinion would follow. We specifically noted that the statement of the supreme court that "... the former patients are entitled to be left to their privacy secure in the belief that their confidences, treatment, and records are protected from disclosure" must be construed in context, i.e., disclosure of the identities of former patients of the doctors. The supreme court did not address the issue of whether A.R.S. § 12-2235 prevents the use of former patients' records against the hospital where each patient's identity is concealed so as to preserve the physician-patient privilege. We therefore vacated the challenged order insofar as the hospital is concerned and specifically ordered as follows:
"1. That all references on any chart to the name, address, marital status and occupation or employment of the patient which have not yet been removed shall be removed from the file. Any additional information that would tend to identify the patient shall be removed from the file except for age, sex and race. (i.e., place of employment, spouse's name, number of children, ages of children, etc.)
2. That upon review by plaintiff's counsel the records will be filed with the court and sealed by the court, not to be opened except upon order of the court.
3. That no attempt will be made by any of the attorneys or parties to learn the identity of the patients, or to in any way attempt to contact these patients.
4. That any information gained as a result of this review will not be communicated to any person not a party to this action, except as may occur during the trial of this case, or except in consultation with experts employed by the plaintiff to review and analyze the information."
The respondents, in defense of the ruling challenged in this special action, argue that the opinion of the Arizona Supreme Court is the law of the case. The term "law of the case" is a rule that the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent...
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