Church's Fried Chicken No. 1040 v. Hanson

845 P.2d 824, 114 N.M. 730

• Court: New Mexico Court of Appeals
• Decided: October 15, 1992
• Docket: 13153
• Status: Published

Opinions

OPINION

DONNELLY, Judge.

In this interlocutory appeal, we examine the question of whether the district court erred in issuing an order prohibiting Employer’s workers’ compensation insurer (Insurer) from engaging in ex parte contacts with Worker’s treating physician. We affirm the order entered below.

Worker suffered a work-related injury to her back in July 1986, while employed by Church’s Fried Chicken restaurant in Farmington. Following a trial on the merits in January 1988, the district court found that Worker was totally disabled from August 24, 1987, to January 5, 1988, and partially permanently disabled after January 5, 1988.

In January 1990 Worker underwent a disc fusion operation. Thereafter, in December 1990, Insurer’s adjuster wrote a letter to Worker’s treating physician, asking whether Worker had reached maximum medical improvement, the extent of her present impairment, and whether the physician would place any restrictions on her activities. Worker’s attorney, who had received a copy of the adjuster’s letter, responded by requesting the physician not to answer Insurer’s questions. Despite this request, the physician sent a written reply to the adjuster’s inquiry, stating his opinion that Worker had not yet reached maximum medical improvement, but she would do so in approximately two months and, at that time, she would be able to perform light, sedentary, and, perhaps, some moderately heavy work.

Worker filed a motion in the district court to prevent further ex parte contact with her physician. Worker objected only to ex parte contacts; she voiced no objection to communications between Insurer and the treating physician that occurred when her attorney was present. The district court filed an order granting Worker’s request, and stated that if Worker’s attorney was given notice and a reasonable opportunity was accorded her attorney permitting him to be present at telephonic or in-person conferences, any and all relevant information sought by Insurer from the treating physician was subject to discovery. Insurer appeals the limitation on its right to engage in further ex parte contacts with Worker’s treating physician.

Insurer’s challenge to the validity of the district court’s order precluding ex parte contact with Worker’s physician raises issues of statutory interpretation, public-policy considerations, and jurisdictional arguments.

First, Insurer argues that the legislature, by enacting NMSA 1978, Section 52-10-1 (Repl.Pamp.1991), has authorized ex parte contacts similar to those sought herein. Alternatively, Insurer maintains that if Section 52-10-1 is not controlling as to this issue, Insurer’s contacts with Worker’s physician should, nevertheless, remain unrestricted because, under our statutory workers’ compensation scheme, formal discovery methods are not adequate to serve the informational needs of the workers’ compensation system.

In resolving Insurer’s initial contention, we consider the effect, if any, of Section 52-10-1 on this case. Section 52-10-1 became effective on January 1, 1991, and provides:

A. A health care provider shall immediately release to a worker, that worker’s employer, that employer’s insurer, the appropriate peer review organization or the’ health care selection board all medical records, medical bills and other information concerning any health care or health care service provided to the worker, upon either party’s written request to the health care provider for that information. Except for those records that are directly related to any injuries or disabilities claimed by a worker for which that worker is receiving benefits from his employer, the request shall be accompanied by a signed authorization for that request by the worker.

B. An employer or worker shall not be required to continue to pay any health care provider who refuses to comply with Subsection A of this section.

Worker’s underlying claim was filed in district court prior to the enactment of Section 52-10-1. She also obtained a judgment for compensation benefits prior to the effective date of this enactment. The judgment, however, remains subject to modification in the event Worker’s disability changes. See DiMatteo v. County of Dona Ana, 109 N.M. 374, 785 P.2d 285 (Ct.App.1989). Thus, we examine the applicability of Section 52-10-1 upon the present case and whether Article IV, Section 34 of the New Mexico Constitution precludes application of this statute in a “pending case.” In addressing this issue, we first consider whether the fact that a workers’ compensation judgment remains subject to modification during the entire period for which benefits were awarded, means that a workers’ compensation case is a “pending case” within the meaning of this constitutional provision.

The fact that the district court’s judgment was subject to modification did not render it a “pending case” within the prohibition of Article IV, Section 34 of the New Mexico Constitution so as to bar the application of Section 52-10-1 following entry of the final judgment. In reaching this conclusion, we are guided by the reasoning applied by our supreme court in Phelps v. Phelps, 85 N.M. 62, 509 P.2d 254 (1973). In Phelps our supreme court considered the effect of a statute changing the age of majority. The court held that a divorce decree, entered prior to the statute, included a provision for child support and thus remained subject to future modification based upon a showing of materially changed circumstances, was not a “pending case” within the contemplation of Article IV, Section 34 of our state constitution. Phelps defined a “pending case” as one that is in the process or course of litigation and has not been concluded by a final judgment. The Phelps court emphasized that a final divorce decree is entitled to full faith and credit despite the possibility it may, under certain circumstances, be subject to modification. We see no significant difference between the rationale applied in Phelps and the workers’ compensation judgment at issue in this case.

We have not overlooked Churchill v. City of Albuquerque, 66 N.M. 325, 347 P.2d 752 (1959), and Segura v. Jack Adams General Contractor, 64 N.M. 413, 329 P.2d 432 (1958), relied upon by Insurer and Amicus. These cases held that, in workers’ compensation cases, a judgment is not final until the entire 550-week period for payment of benefits has" elapsed. These decisions, however, did not address the issue of the pendency of such a case for purposes of Article IV, Section 34 of the New Mexico Constitution. Both cases recognized a district court’s power to modify a judgment in a workers' compensation case based upon changed circumstances. Since Phelps specifically held that the fact that a judgment may be subject to modification does not mean that the case remains “pending” for constitutional purposes, we think this decision constitutes persuasive authority on this issue.

At the time Section 52-10-1 took effect, no motions or other formal proceedings seeking to modify the final judgment were pending. The litigation had ended with the judgment, despite the right of Employer and Insurer to modify such judgment under the Workers’ Compensation Act upon a showing of a change in Worker’s disability. See St. Clair v. County of Grant, 110 N.M. 543, 797 P.2d 993 (Ct.App.1990). Thus, we conclude that the case was not “pending” as of January 1, 1991, within the prohibition imposed by our state constitution, and we agree with Insurer that it was entitled upon request to receive the information contemplated by Section 52-10-1.

We next examine whether Section 52-10-1 permits ex parte discovery as urged by Insurer. In reviewing an order of the district court limiting discovery we examine such ruling for an abuse of discretion. DeTevis v. Aragon, 104 N.M. 793, 727 P.2d 558 (Ct.App.1986).

Insurer argues that the statute permits it to contact ex parte Worker’s treating physician and inquire about Worker’s physical or emotional condition, prospects for improvement, restrictions on activities, and other matters. We disagree with Insurer’s interpretation of Section 52-10-1. By its terms, the statute authorizes the release by the health care providers of all medical records, medical bills, and other information concerning any health care or health service provided to a worker, “upon either party’s written request.” Section 52-10-1(A). The statute allows a worker, employer, or insurer to obtain, without restriction, copies of a worker’s medical records, bills for services, and other documents “directly related to any injuries or disabilities claimed by a worker for which that worker is receiving benefits from his employer.” Id. The statute does not, however, in the absence of a worker’s consent, authorize ex parte oral discussion by an employer or insurer with a worker’s treating physician concerning a worker’s medical condition, nor the production of matters not reasonably related to a worker’s disability claim, medical expenses, or health care services arising out of such claim. The legislative section heading for Section 52-10-1 refers to “RELEASE OF MEDICAL RECORDS.” The term “records” refers to matters which have been “recorded” or which have been “documented.” Webster’s New Collegiate Dictionary, 966 (1977).

Courts in other jurisdictions that have addressed the question of whether an opposing party is entitled to ex parte discovery from an injured party’s treating physician in personal injury actions or other proceedings have reached conflicting results. See generally Daniel P. Jones, Annotation, Discovery: Right to Ex Parte Interview With Injured Party’s Treating Physician, 50 A.L.R.4th 714 (1986). The results reached by some courts have been influenced, in part, by express statutory provisions. Jurisdictions which have upheld the right to conduct ex parte interviews of a plaintiff’s treating physician have generally premised such right upon their determination that commencement of an action for personal injuries constitutes a waiver by the plaintiff of the physician-patient privilege in that proceeding. See, e.g., Doe v. Eli Lilly & Co., 99 F.R.D. 126 (D.D.C.1983); Romine v. Medicenters of Am., Inc., 476 So.2d 51 (Ala.1985); Langdon v. Champion, 745 P.2d 1371 (Alaska 1987); Green v. Bloodsworth, 501 A.2d 1257 (Del.Super.Ct.1985); Pic N’ Save v. Singleton, 551 So.2d 1244 (Fla.Dist.Ct.App.1989); Davenport v. Ephraim McDowell Mem. Hosp., Inc., 769 S.W.2d 56 (Ky.Ct.App.1988); Domako v. Rowe, 184 Mich. App. 137, 457 N.W.2d 107 (1990), aff'd, 438 Mich. 347, 475 N.W.2d 30 (1991); Lazorick v. Brown, 195 N.J.Super. 444, 480 A.2d 223 (App.Div.1984).

Conversely, other courts have held that, in the absence of an express waiver, ex parte discovery by a party of a plaintiff’s treating physician is improper. See, e.g., Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (Ct.App.1989); Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (1975) (en banc); Petrillo v. Syntex Lab., Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952 (1986), cert. denied, 113 Ill.2d 584, 106 Ill.Dec. 55, 505 N.E.2d 361, and cert. denied, 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987); Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353 (Iowa 1986); Wesley Med. Ctr. v. Clark, 234 Kan. 13, 669 P.2d 209 (1983); Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333 (1976); State ex rel. Woytus v. Ryan, 776 S.W.2d 389 (Mo.1989) (en banc); Jaap v. District Court, 191 Mont. 319, 623 P.2d 1389 (1981); Travelers Ins. Co. v. Woodard, 461 S.W.2d 493 (Tex.Civ.App. 1970); State ex rel. Klieger v. Alby, 125 Wis.2d 468, 373 N.W.2d 57 (Ct.App.1985).

Courts which have denied ex parte interviews with a plaintiff’s treating physician have generally restricted such right because of privacy interests underlying the physician-patient relationship and concern that adversarial parties may seek to improperly influence a plaintiff’s physician. See, e.g., Duquette v. Superior Court; Fields v. McNamara; Linton v. City of Great Falls, 230 Mont. 122, 749 P.2d 55 (1988).

As observed in Manion v. N.P. W. Medical Center, 676 F.Supp. 585 (M.D.Pa.1987), permitting ex parte interviews by an adversarial party without prior notice to the plaintiff or his attorney, eliminates any safeguards against revelation of matters irrelevant to the action and gives rise to situations permitting breaches in confidentiality between a patient and his treating physician. Similar concerns have been voiced by our supreme court in Smith v. Ashby, 106 N.M. 358, 743 P.2d 114 (1987).

In Smith our supreme court granted a writ of superintending control to preclude a district judge from requiring a plaintiff in a personal injury action to authorize ex parte disclosure of information by his treating physician to defense counsel. The court reversed the order and quoted with approval from the Illinois Appellate Court’s opinion in Petrillo, noting that

the Illinois appellate court joined the “growing number of courts which have found that public policy strongly favors the confidentiality of the physician-patient relationship and thereby prohibits, because of the threat posed to the sanctity of that relationship, extra-judicial ex parte discussion of a patient’s medical confidences.”

Smith v. Ashby, 106 N.M. at 359, 743 P.2d at 115 (quoting Petrillo v. Syntex Lab., Inc., 102 Ill.Dec. at 177, 499 N.E.2d at 957).

The Smith court also quoted with approval language in Petrillo, stating that “ ‘we find it difficult to believe that a physician can engage in an ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient.’ ” Id. at 359, 743 P.2d at 115 (quoting Petrillo v. Syntex Lab., Inc., 102 Ill.Dec. at 182, 499 N.E.2d at 962). While the court in Smith dealt with the privacy right of a plaintiff in a personal injury action, we think the rationale and public-policy factors cited by the court apply equally in workers’ compensation actions.

Insurer also argues that, irrespective of whether Section 52-10-1 is deemed applicable to the situation presented here, the district court was without authority to restrict its access to Worker’s physician. Insurer contends there was no physician-patient privilege in effect in New Mexico at the time the district court entered its order limiting ex parte contact with Worker’s treating physician, and that later recognition by our supreme court of such privilege in the Rules of Evidence could not provide support for the court’s ruling in the instant case. See SCRA 1986, 11-504(D)(3) (effective July 1, 1990) (Cum.Supp.1992). While it is true that there was no general physician-patient privilege in effect when Smith was decided, the decision in Smith was grounded upon public-policy considerations.

We apply a similar approach in the instant case and conclude that the district court’s authority to restrict ex parte discovery of Worker’s treating physician is supported by public-policy considerations recognized in Smith.

Insurer additionally argues that employers and insurers are responsible for providing continuing medical care to an injured worker, unlike personal injury cases which, following entry of judgment, are normally concluded without further proceedings. Insurer reasons that because our workers’ compensation system is designed to minimize litigation costs and delays, and to encourage informal methods of discovery and dispute resolution, the decision in Smith should be limited in scope. While we agree that these factors are important considerations in workers’ compensation actions, we do not agree that these considerations are sufficient to negate the public-policy principles recognized by our supreme court in Smith. See also Duquette v. Superior Court (discussing rationales for preventing ex parte contacts with plaintiffs’ physicians); Petrillo v. Syntex Lab., Inc. (same). Moreover, there has been no showing in this case that Insurer’s access to relevant information will be materially restricted by the procedure authorized in the district court’s order or that the procedure implemented by the court will result in significant delay or increase the cost of such proceedings.

Finally, Insurer argues that there are additional policy reasons why the decision in Smith should not be held applicable to workers’ compensation cases. Insurer argues that Sanchez v. Wohl Shoe Co., 108 N.M. 276, 771 P.2d 984 (Ct.App.1989), and Trujillo v. Puro, 101 N.M. 408, 683 P.2d 963 (Ct.App.1984), compel a different result in workers’ compensation proceedings. We disagree. These decisions were not decided upon public-policy factors presented here. We deem Smith to be controlling on this issue.

We affirm the order of the district court. We acknowledge and express our appreciation for the amicus brief filed by the New Mexico Defense Lawyers’ Association in this cause.

Worker is awarded $1,500 for the services of her attorney on appeal.

IT IS SO ORDERED.

ALARID, C.J., concurs. BLACK, J., dissents.