Chase v. People's Drug Store

24 V.I. 183, 1989 WL 1739520, 1989 V.I. LEXIS 46
CourtSupreme Court of The Virgin Islands
DecidedMay 3, 1989
DocketCivil No. 537/1988
StatusPublished
Cited by3 cases

This text of 24 V.I. 183 (Chase v. People's Drug Store) is published on Counsel Stack Legal Research, covering Supreme Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Chase v. People's Drug Store, 24 V.I. 183, 1989 WL 1739520, 1989 V.I. LEXIS 46 (virginislands 1989).

Opinion

PETERSEN, Judge

MEMORANDUM OPINION

May a defendant’s counsel, as an aid to discovery, conduct an ex parte interview with plaintiff’s treating physician with respect to matters relating to the litigation when the patient-plaintiff has not consented to such interview? For the reasons herein stated, this Court responds in the affirmative.

I.

Plaintiff alleges that she incurred eye damage as a result of an improperly filled prescription for “eye” drops with “ear” drops by the defendant.

Counsel for defendant orally informed the plaintiff’s counsel that he intended to conduct an ex parte interview with plaintiff’s treating physician, Dr. Alfred Anduze, who has consented to such interview. Plaintiff's counsel objected to the interview and defendant moved this Court for permission to conduct the ex parte interview.

Plaintiff concedes that by instituting this action she has extinguished the physician-patient privilege to the extent that her medical condition will be a factor or element in the litigation.

II.

Although the plaintiff authorized the treating physician to provide access to the plaintiff’s medical records, the plaintiff [185]*185initially argued that depositions are the only appropriate means by which the physician may furnish additional information.

In support of this position, plaintiff cited Weaver v. Mann, 90 F.R.D. 443 (D.N.D. 1981) wherein the court concluded that the “practice of engaging in private conversations with plaintiff’s physicians is not contemplated by the rules.”

Plaintiff likewise contends that an ex parte informal interview would permit defense counsel to privately inquire into irrelevant matters and could lead to a breach of confidentiality by delving into areas not covered by the waiver.

Defendant has argued that once there is a waiver, it is complete; that neither party has a proprietary right with references to witnesses, including treating physicians of a patient-plaintiff, and that allowing ex parte oral interview would reduce the expense of pretrial discovery which would be incurred if the treating physician must be formally deposed to obtain any information beyond what is in the medical history and treatment records.

Courts throughout the United States that have struggled with this issue of ex parte interview of treating physicians are sharply divided. The plaintiff’s position has been supported by a number of courts. Miles v. Farrell, 549 F. Supp 82 (N.D. Ill. 1982). Alston v. Greater South Community Hosp., 107 F.R.D. 35 (D.D.C. 1985) (limited to deposition); Garner v. Ford Motor Co., 61 F.R.D. 22 (D. Alaska 1973) (no specific authorization of interviews contained in Fed. R. Civ. P.); Wenninger v. Muesing, 240 N.W. 2d 333 (1976) (depositions guard against unauthorized disclosure of information that is privileged or irrelevant and presence of patient’s attorney protects physician from unwitting disclosure of confidential information); Jaap v. District Court, 623 P.2d 1389 (1981) (Montana Rules do not authorize personal interviews); Anker v. Brodnitz, 413 N.Y.S.2d 582 (Sup. Ct.), aff’d, 422 N.Y.S.2d 887 (1979) (New York Rules do not authorize interviews; difficult for physician to determine the extent to which patient’s privilege has been waived because issue of legal relevancy is complex; therefore, rule requiring formal discovery will lessen number of suits against doctors for wrongful disclosure); Cwick v. Rochester, 338 N.Y.S.2d 753 (1976); Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp 793 (D. Ohio 1965). Petrillo v. Syntex Laborotories, Inc., 499 N.E.2d 952 (1986) (Public policy favors the confidentiality of the physician-patient privilege and thereby prohibits extra-judicial ex parte discussion of a patient’s medical confidences.).

[186]*186Courts in other jurisdictions that have upheld the right of defendant’s counsel to conduct informal interviews of plaintiff’s treating physicians have done so recognizing that court rules do not prohibit such interviews and that those interviews constitute a more 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, 146 N.W.2d 708 (1966) (no reason given for allowing interview of plaintiff’s physician); Arctic Motor Freight, Inc. v. Stover, 571 P.2d 1006 (Alaska 1977); Stufflebaum v. Appelquist, 694 S.W.2d 882 (1985); Green v. Bloodsworth, 501 A.2d 1257 (1985) (no express law or rule prohibiting defense counsel from obtaining information through informal discussion and no public policy consideration involved); Corallyzo v. Fass, 450 So.2d 858 (1984).

It has been said that Court opinions which prohibit an adverse party from meeting privately with a treating physician reflect the fear of undue influence. On the other side of the coin, it has also been noted that the goal of discovery is impeded when a physician is compelled to appear for deposition without an adequate opportunity to understand the nature of the controversy and to prepare himself for examination by attorneys in the case. Lazorick v. Brow, 480 A.2d 233 (1984).

This Court is fully aware of the very legitimate concerns expressed by both parties herein. The defendant has relied on the general proposition that no party to litigation has a propriety right to any witness’s evidence. For “absent a privilege, no party is entitled to restrict an opponent’s access to a witness, however partial or important to him, by insisting upon some notion of allegiance.” See Doe v. Eli Lilly & Co., 99 F.R.D. at 128. The defendant is interested in proceeding with trial preparation by interviewing plaintiff’s treating physician, without resorting to the rigidity, expense or inconvenience of a deposition conducted pursuant to the Federal Rules of Civil Procedure. Moreover, the defendant appears to seek candor and spontaneity which would be more readily apparent in an interview. On the other hand, the plaintiff seeks to protect confidential information not relevant to the litigation and relies on the physician’s professional obligation to preserve confidentiality. The plaintiff may also desire to preserve the physician’s loyalty. See e.g., Alexander v. Knight, 177 A.2d 142 (1962). (Members of the medical profession “owe their patients more than just medical care for which payment is exacted; there is a duty [187]*187of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed.”)

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24 V.I. 183, 1989 WL 1739520, 1989 V.I. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chase-v-peoples-drug-store-virginislands-1989.