Kizer v. Sulnick

202 Cal. App. 3d 431, 248 Cal. Rptr. 712, 1988 Cal. App. LEXIS 569

• Court: California Court of Appeal
• Decided: June 23, 1988
• Docket: B026325
• Status: Published

Opinions

Opinion

GEORGE, J.

The Director of the Department of Health Services appeals from the denial of his petition to compel production of documents pursuant to administrative subpoena. (Gov. Code, §§ 11186-11188.)¹ The subpoena was issued in connection with an investigation of possible health hazards posed by the Casmalia Resources Class I Hazardous Waste Facility.² 2 It ordered an attorney representing a group of Casmalia residents in a civil action against the waste facility to produce a copy of a medical study of the health effects on persons living near the facility, which study had been commissioned by the attorney’s law firm. The superior court ruled the health effects study was protected by the physician-patient privilege, the “attorney work product privilege,”³ and the right to privacy.

Appellant contends that the physician-patient privilege was waived because the filing of the suit against the waste facility put in issue the residents’ physical condition, and that the physician-patient privilege, the attorney work-product doctrine, and the right to privacy were waived because information concerning the results of the health study was released to a newspaper. For the reasons stated below, we reverse the order.⁴

Facts

Appellant, the Director of the Department of Health Services, alleged in the court below that as part of an investigation of whether the Casmalia Waste Facility presents a threat to public health, he issued an administrative subpoena duces tecum dated May 28, 1986, to respondent ordering him to appear at a public hearing on June 12, 1986, and produce: “1. Any and all medical data, test results, analyses and other records generated as part of the health study conducted by Jan Schienle, including the names of the participants, [fl] 2. Any and all conclusions or findings made or drawn as a result of the health study conducted by Jan Schienle. [fl] 3. A copy of the protocol for the health study, including but not limited to the steps taken to assure accuracy and quality control.”

An article in the June 8, 1986, edition of the Los Angeles Times newspaper reported that a medical study of 167 Casmalia residents found “abnormally high occurrences of respiratory and central nervous system problems and elevated white blood cell counts . . . .” The study was paid for by “attorneys representing Casmalia residents” in a suit against the Casmalia Resources Hazardous Waste Facility and reportedly “was conducted by toxicologist Jan Schienle of California State University, Northridge, and four physicians.” Attorney Robert Sulnick, respondent in this appeal, was quoted as blaming the health problems on the presence of the waste facility.

Respondent sent word that he was unable to appear at the June 12 hearing for medical reasons. Dr. Daniel Du Coffe did appear pursuant to subpoena, stated he was one of the doctors who worked on the health study and, while stating the study was not yet complete, briefly described it and summarized its findings.

A second subpoena dated September 11, 1986, was issued ordering respondent to produce the same information concerning the health study by delivering it to the Los Angeles office of the Department of Health Services within 10 days. Respondent replied by letter that he would not comply, raising “the physician/patient privilege of confidentiality; the attorney/client privilege; and the attorney work product privilege.”

On December 11, 1986, appellant filed a petition in superior court to compel compliance with the subpoenas. The court issued an order to show cause, and respondent filed written opposition which confirmed that respondent was one of four attorneys representing residents of Casmalia⁵ who had retained “medical consultants to develop medical records and data regarding the residents of Casmalia.” Respondent argued the resulting data was protected by the right to privacy, the physician-patient privilege, and the attorney work-product doctrine. Conspicuous by its absence was an assertion of the attorney-client privilege.⁶

The superior court denied the petition on the basis of the physician-patient privilege, the attorney work-product doctrine, and the right of privacy.

Discussion

I

The Administrative Subpoena Power

The Department of Health Services controls the issuance of permits to operate hazardous waste disposal facilities. (Health & Saf. Code, § 25200.) Local regulation of such facilities is prohibited unless “after public notice and hearing, the director [of the Department of Health Services] determines that the operation of the facility may present an imminent and substantial endangerment to health and the environment.” (Health & Saf. Code, § 25149, subd. (a).) Appellant, as the Director of the Department of Health Services, has the power to conduct investigations concerning all matters within the jurisdiction of the department. (Gov. Code, § 11180; Health & Saf. Code, § 102.) In connection with such investigations, appellant is empowered to “Issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, [and] documents . . . .” (Gov. Code, § 11181, subd. (e).) (3) Compliance with such an administrative subpoena can be secured by petitioning the superior court for an order compelling production of the material. (Gov. Code, §§ 11186-11188; Brovelli v. Superior Court (1961) 56 Cal.2d 524, 528-529 [15 Cal.Rptr. 630, 364 P.2d 462].)

II

The Right to Privacy

The court below expressly relied on the decision in Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669 [156 Cal.Rptr. 55], which held that an administrative subpoena for hospital records violated the patient’s right to privacy. (Cal. Const., art. I, § 1.) That case reviewed an administrative subpoena duces tecum for the hospital records of five named patients in connection with an investigation of the competence of a physician. The declaration in support of the subpoena did not state that any allegations of improper conduct involving treatment of the named patients had been made. The Court of Appeal recognized that “an individual’s right to privacy is not an absolute right . . . [and] the State of California has a most legitimate interest in the quality of health and medical care received by its citizens . . . [and] therefore, under some circumstances disclosure may permissably [szc] be compelled.” (Id. at p. 679.) The subpoena in Gherardini was found defective, however, because the supporting declaration made “no showing of relevance or materiality of the medical records of these five specified patients to the general charge of gross negligence and/or incompetence of the licensee-doctor.” (Id. at p. 681.)

The decision in Gherardini does not support the lower court’s order in this case. The health study sought by the subpoena in the present case is clearly material and relevant to the department’s investigation of the Casmalia Facility. Dr. Du Coffe testified the study revealed health effects exhibited by Casmalia residents which are “statistically significant” and might lead to diseases such as leukemia and multiple sclerosis. This is precisely the type of information the department’s investigation is seeking.

It is also significant that Gherardini involved a demand for individually identifiable medical records. In contrast, Board of Medical Quality Assurance v. Hazel Hawkins Memorial Hospital (1982) 135 Cal.App.3d 561 [185 Cal.Rptr. 405] arose from a demand for the medical records of four unnamed patients. In that case the court held that the right of privacy discussed in Gherardini did not apply “because neither disclosure of the patients’ identities nor disclosure of identifying medical information was requested.” (Id. at p. 565.)⁷In the present case, the court below was not given a detailed description of the contents of the health study. Therefore, the record does not disclose whether the study refers to individually identifiable medical records. If such records are part of the study, the right to privacy would justify, at most, either the deletion of any named medical records upon the remainder of the health study being produced or, if feasible, the deletion of information which individually identifies the participants. The right to privacy does not support a blanket denial of appellant’s petition to compel production of the entire health study on the record before this court.⁸

III

The Physician-patient Privilege

The physician-patient privilege arises when a person “consults a physician or submits to an examination by a physician for the purpose of securing a diagnosis or preventive, palliative, or curative treatment . . . .” (Evid. Code, §991.) The party asserting a privilege has the burden of proof regarding the existence of the privilege. (National Steel Products Co. v. Superior Court, supra, 164 Cal.App.3d 476, 483; Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 447 [120 Cal.Rptr. 787].) While the exceedingly brief description of the health effects study in the record before us suggests that participation by the Casmalia residents might constitute consultation with a physician, there is no evidence that the purpose of this communication was to obtain a diagnosis of the subjects’ condition. It appears more likely that the purpose was to determine whether a statistically significant portion of the residents of Casmalia shared similar medical complaints in order to determine whether the presence of the waste facility was the cause of these symptoms. Participation in such a group study does not invoke the same considerations of confidentiality as an individual’s communication with his or her doctor. The record on appeal does not support a finding that respondent sustained his burden of proof that the physician-patient privilege was applicable.

Even if the physician-patient privilege were applicable to the health effects study, in the present case this privilege was unavailable to those participants who were also plaintiffs in the suit against the waste facility, because the pursuit of a claim seeking damages for personal injury allegedly caused by the presence of the facility is inconsistent with a reasonable expectation of privacy on the part of such individuals in matters relating to their medical condition. “The whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his

ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege.” (City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227, 232 [231 P.2d 26, 25 A.L.R.2d 1418]; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 933, fn. 13 [114 Cal.Rptr. 603, 523 P.2d 643].) In the present case, the record before us establishes that 89 of the participants in the study are also plaintiffs in the suit against the facility. There is no evidence concerning whether the remaining participants, if any, are also plaintiffs. The record on appeal, therefore, does not provide a basis for concluding that the physician-patient privilege is applicable.

IV

Attorney Work-product Doctrine⁹

At the time of the ruling in the present case, the attorney work-product doctrine was set forth in Code of Civil Procedure section 2016, subdivision (b): ¹⁰ “The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.” (Stats. 1984, ch. 1127, § 1, pp. 3803-3804.) Although the statute by its terms applies only to discovery in civil cases, the work-product doctrine has been extended to apply to testimony at trial in civil cases (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 648 [151 Cal.Rptr. 399], contra Mize v. Atchison, T. & S. F. Ry. Co., supra, 46 Cal.App.3d at pp. 448-449) as well as criminal cases. (People v. Collie (1981) 30 Cal.3d 43, 59 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776].) The doctrine protects work prepared for a completed case from discovery in subsequent litigation (Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 62 [166 Cal.Rptr. 274]) and applies even if the attorney was working in a nonadversarial context. (Rumac, Inc. v. Bottomley, supra, 143 Cal.App.3d 810, 816.)

While an attorney’s “impressions and conclusions” are given “absolute protection,” the doctrine “ ‘affords a conditional or qualified protection for work product generally ....’” (Rumac, Inc. v. Bottomley, supra, 143 Cal.App.3d at p. 815.) Reports of medical experts qualify for this conditional protection; therefore, disclosure will be ordered upon a showing of good cause. (National Steel Products Co. v. Superior Court, supra, 164 ; Sanders v. Superior Court (1973) 34 Cal.App.3d 270, 279-280 [109 Cal.Rptr. 770].)¹¹ The determination of good cause contemplates a balancing of the need for disclosure against the purpose served by the work-product doctrine. (National Steel Products Co. v. Superior Court, supra, 164 Cal.App.3d at p. 490.)

The work-product doctrine is designed “(i) to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to prevent an attorney from taking undue advantage of his adversary’s industry or efforts.” (Former Code Civ. Proc., § 2016, subd. (h); now see Code Civ. Proc., § 2018, subd. (a).) This rationale for the work-product doctrine would not be served by its application in the present case. Respondent attorney’s right to prepare his case for trial “with . . . privacy” (§ 2016, subd. (h)) is protected by Government Code section 11183, which prohibits appellant, as a state officer, from disclosing the contents of the health study except under limited circumstances. Therefore, the additional purpose of the work-product doctrine set forth in section 2016, subdivision (h), to prevent the attorney’s adversary from taking undue advantage, becomes irrelevant in the present context. Appellant is not a party to the lawsuit and is barred by statute from providing the information sought to respondent’s adversary. Although respondent contends his opponents in the lawsuit may gain access to the health study if it is released to appellant, there is no evidence in the record to substantiate this fear.

On the other hand, the need for disclosure is significant. Appellant cannot fulfill his statutory duty to investigate the possible health hazards posed by the waste facility without access to all relevant information. Additionally, a “compelling reason for permitting discovery is the inability to obtain an adequate substitute for that which is sought by discovery.” (National Steel Products Co. v. Superior Court, supra, 164 Cal.App.3d at p. 491.) The county health officer for Santa Barbara County testified he was unable to conduct his own health study because many of the residents of Casmalia would not participate.¹²

The record on appeal does not contain sufficient evidence to support the conclusion of the court below that the attorney work-product doctrine precluded disclosure of the health study.

Since we conclude the right of privacy, the physician-patient privilege, and the attorney work-product doctrine do not prevent disclosure of the health study pursuant to an administrative subpoena, we need not reach appellant’s contention that respondent waived these protections by participating in the “press conference” announcing the results of the study. We do not address the issue of the attorney-client privilege because, as we have noted, that issue was not argued to the court below or to us.

Disposition

The order denying the petition to compel production of documents pursuant to administrative subpoena is reversed. Each party shall bear his own costs on appeal.

Goertzen, J., concurred.

1 The order is appealable as a final judgment in a special proceeding. (Tom v. Schoolhouse Coins, Inc. (1987) 191 Cal.App.3d 827, 828-829, fn. 1 [236 Cal.Rptr. 541].)

2 We note that this waste facility was recently the subject of a published opinion by another division of this court in Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827 [240 Cal.Rptr. 903].

3 Although the protection afforded an attorney’s work product frequently has been described as a “privilege” (compare National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 485 [210 Cal.Rptr. 535], and Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 815 [192 Cal.Rptr. 104], with BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240 [245 Cal.Rptr. 682]), it is not one of the privileges enumerated in Evidence Code section 900 et seq., and both the United States and California Supreme Courts have instead described the concept as the attorney “work-product doctrine.” (Upjohn Co. v. United States (1981) 449 U.S. 383, 386 [66 L.Ed.2d 584, 589, 101 S.Ct. 677]; Shepherd v. Superior Court (1976) 17 Cal.3d 107, 121 [130 Cal.Rptr. 257, 550 P.2d 161].)

4 In a letter received by the court shortly before argument, respondent suggests this case may be moot because the Casmalia residents have filed suit against the State of California (Adams et al. v. State of California et al. (Super. Ct. Santa Barbara County, 1988, No. SM 56532)) and thus appellant may be able to obtain the health effects study through discovery in that suit. While we do not agree that this would render the present appeal moot, at oral argument we deferred submission of the case 30 days to May 19, 1988, in order to allow the parties an opportunity to reach a settlement. The parties having failed to reach such an agreement, we issue our opinion.

5 Adams v. Hunter (Super. Ct. Santa Barbara County, 1986, No. SM 47874.)

6 Respondent’s opposition papers do make passing reference to assertions of attorney-client privilege made to the Department of Health Services in response to the subpoenas. Declarations of a number of respondent’s clients who participated in the study also state that they “do not consent to a waiver of. . . the attorney-client privilege.” But no arguments on this ground were made to the superior court.

7 By analogy, we note that the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.), which does not apply to the present case, also makes this distinction by limiting the definition of protected medical information to “individually identifiable information.” (Civ. Code, § 56.05, subd. (b).) In fact, the statute expressly permits disclosure of medical information “for bona fide research purposes” provided such information is not further disclosed “in any way which would permit identification of the patient.” (Civ. Code, § 56.10, subd. (c)(7).)

8 The subpoena does ask for the names of the subjects of the study, but this is not necessarily equivalent to a request for identified medical records because a separate list of names could be provided, if relevant.

9 We do not consider whether the attorney-client privilege applies since that issue was not argued either in this court or in the court below.

10 The work-product doctrine is now codified in Code of Civil Procedure section 2018.

11 The work-product doctrine does not apply if it is “reasonably certain” the expert will testify at trial concerning the material subject to disclosure. (Sanders v. Superior Court, supra, 34 Cal.App.3d at p. 277.)

12 The declarations of the Casmalia residents deny the claim made by the county health officer that the residents were advised by their attorneys not to cooperate with the government in a health study. The declarations do not deny, however, that many of the residents did refuse to participate in such a study. The declarations further confirm that there exists in the geographical area “a deep and wide spread [sz'c] feeling of distrust” of government health officials, and that the residents believe that the “State is our opponent. . . .”