Hallendorf v. Superior Court

85 Cal. App. 3d 553, 149 Cal. Rptr. 564, 1978 Cal. App. LEXIS 2002

• Court: California Court of Appeal
• Decided: October 16, 1978
• Docket: Civ. 43773
• Status: Published

Opinions

Opinion

ROUSE, J.

Petitioner, plaintiff in a personal injury action, seeks relief by extraordinary writ after respondent court granted a defense motion to compel further answers to interrogatories and to compel compliance with a subpoena duces tecum requiring the production of medical records. We issued an alternative writ,. because it appeared that the court’s order violated principles announced in Britt v. Superior Court (1978) 20 Cal.3d 844 [143 Cal.Rptr. 695, 574 P.2d 766], in that the order required petitioner to disclose his entire lifetime medical histoiy. The Britt decision was filed on March 27, 1978, shortly after the date of respondent court’s order.

Petitioner commenced an action for damages arising from a collision with the automobile of real party in interest, defendant in the action. He seeks general damages, medical and related expenses, property damage and loss of earnings. Petitioner alleges that at the time of the collision he was gainfully employed as a physician-surgeon, earning an average monthly salary in excess of $2,840, and that as a proximate result of the negligence of the defendant he has been and will be prevented from attending to his usual occupation. It subsequently developed that petitioner is claiming that injuries to his arm and shoulder sustained in the accident forced him to retire three and one-half years early from his occupation as a physician-surgeon at Kaiser-Permanente Hospital and that by reason thereof he has sustained a wage loss in the amount of $101,500.

In the course of discovery, real party propounded interrogatories to petitioner requiring him to provide information about medical problems other than those caused or affected by the accident that he had either before or since the accident; to list the names of all doctors examining or treating him for any medical condition before the accident; and to list all hospitals or institutions in which he had been, either as an in-patient or out-patient, during his entire lifetime. Petitioner refused to respond to these requests, claiming that the information sought was unrelated to the injuries complained of in the action.¹ Petitioner also instructed his physician, Dr. Hills, not to comply with a subpoena duces tecum which sought all medical records in the possession of Dr. Hills, who had treated petitioner for 20 years. Petitioner invoked the physician-patient privilege, and asserted that Dr. Hills had never treated him for the condition and injuries complained of in the action. Real party moved to compel further responses to the interrogatories and to compel compliance with the subpoena duces tecum, contending that petitioner, by bringing the lawsuit, had placed his physical and emotional conditions in issue and thereby waived his physician-patient privilege. In an affidavit in support of the motion,- real party’s attorney alleged, on information and belief, that medical records subpoenaed from the Kaiser-Permanente Hospital indicated that Dr. Hills had treated petitioner over a long period of time for a “history of hypertension and a serious illness which drastically affected the plaintiff’s ability to practice medicine.” Real party contended that information concerning prior physical and emotional conditions which affected petitioner’s ability to practice medicine and prior treatment by Dr. Hills for those conditions was necessary “so that the defendant can ascertain if there were other medical and/or emotional reasons why the plaintiff took an early retirement from Kaiser and has claimed to have suffered his $101,500.00 wage loss.”

Petitioner opposed the motion, contending that he had not, by bringing the action, tendered as an issue his entire medical history; he had tendered only the issue of the injuries to his arm and shoulder and the effect of those injuries upon his ability to perform his occupation as a surgeon; and that the discovery sought exceeded that which was permissible and should be refused, pursuant to the physician-patient privilege. In an affidavit in opposition to the motion, petitioner sought to show that certain treatment he had received in the past was not directly related to the issues raised in the action. Petitioner admitted that he had been treated for hypertension, and that the condition had been controlled by medication since 1957. The “serious illness” occurred in 1962 and did cause him to refrain from medical practice for two years. That condition, too, was controlled with medication,, and petitioner had resumed his medical practice in 1964 and had been continuously engaged in such practice until his forced retirement. In 1967, he became employed by Kaiser, assigned to the surgical section, and that employment lasted until July 1, 1977. Petitioner averred that neither of the foregoing conditions involved arm and/or shoulder injuries and that at no time since he resumed his practice had the conditions referred to hampered his ability to perform as a physician.

In Britt v. Superior Court, supra, 20 Cal.3d 844, the court addressed itself to a discovery order which permitted defendants to inquire without limitation into each plaintiff’s lifetime medical history. In Britt, the interrogatories demanded of plaintiffs a complete account of their entire medical history, encompassing all illnesses, physical injuries, and mental or emotional disturbances for which plaintiffs sought treatment at any time during their lives. (P. 850.) Plaintiffs in Britt, as here, objected to the trial court’s unlimited order which required them to comply with defendant’s request for information related to all past medical conditions without regard to whether such conditions had any bearing on the litigation being conducted. Defendants .argued, as real party does here, that the broad discovery order properly afforded it the opportunity to determine for itself whether the injuries, which plaintiffs asserted were caused by defendants’ airport operations, actually arose from other medical conditions.

The court in Britt reaffirmed prior decisions placing a narrow interpretation on the scope of the exception to the physician-patient and psychotherapist-patient privileges contained in sections 996 and 1016 of the Evidence Code. Although the court agreed that in seeking recovery for physical and mental injuries, plaintiffs had unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they had put in issue, the court concluded that past cases made it clear that “such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical histoiy to scrutiny.” (P. 849.)

Here, as in Britt, the discoveiy authorized by the challenged order is clearly overbroad. That aspect of the challenged order which requires petitioner to respond to interrogatories compels petitioner to reveal his entire lifetime history, and the enforcement of the subpoena duces tecum will require Dr. Hills to disclose all treatment rendered to petitioner over a period of 20 years without limitation to the medical condition which petitioner has put in issue. We conclude, therefore, that petitioner is entitled to relief by extraordinary writ. We recognize, however, that the showing made in support of the discoveiy sought by real party understandably did not address the later-announced Britt standards. Our disposition of this matter, therefore, does not preclude real party from framing narrower, more precisely tailored interrogatories or subpoenas which do not improperly impinge on privileged information (see Britt v. Superior Court, supra, 20 Cal.3d at pp. 862-863, fn. 7).

Let a peremptory writ of prohibition issue restraining respondent court from enforcing its order.

Taylor, P. J., concurred.

1 Petitioner did respond that he was treated for bursitis in 1970. This treatment, of course, was related to the injury for which recovery is sought. (In re Lifschutz (1970) 2 Cal.3d 415, 434, fn. 19 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]; Britt v. Superior Court (1978) 20 Cal.3d 844, 864, fn. 9 [143 Cal.Rptr. 695, 574 P.2d 766].)