State ex rel. Kimberly Barks, Relator v. The Honorable Daniel Pelikan

• Court: Supreme Court of Missouri
• Decided: March 1, 2022
• Docket: SC99024
• Status: Published

Opinion

SUPREME COURT OF MISSOURI en banc

STATE ex rel. KIMBERLY BARKS, ) Opinion issued March 1, 2022 ) Relator, ) ) v. ) No. SC99024 ) THE HONORABLE DANIEL PELIKAN, ) ) Respondent. )

ORIGINAL PROCEEDING IN PROHIBITION

Kimberly Barks petitions this Court for a writ of prohibition or mandamus to prevent

the disclosure of her medical records. Barks contends the circuit court erred by ordering

the release of her medical records because her records were protected by the physician-

patient privilege. This Court agrees and holds Barks did not waive the physician-patient

privilege by pleading the affirmative defenses of comparative fault and assumption of risk.

This Court’s preliminary writ is now made permanent.

Background

In August 2019, a golf cart driven by Barks was involved in an accident in

St. Charles County, Missouri. Sheila Spencer was a passenger in the golf cart and allegedly

sustained personal injuries. Spencer sued Barks, alleging Barks was negligent in operating the golf cart because, among other reasons, Barks was intoxicated while operating the golf

cart.

Barks denied Spencer’s allegations, including that she operated the golf cart while

intoxicated. Barks also, alternatively, asserted several affirmative defenses including

comparative fault, implied primary assumption of risk, and implied secondary assumption

of risk. Specifically, Barks claimed Spencer “assumed the risk of injury and accident by

entering and continuing to ride in the golf cart if the driver of said vehicle was under the

influence and therefore [Spencer] is barred from recovery against [Barks] and/or her fault

should be compared and allocated.”

Spencer sought discovery of Barks’ medical records from the night of the accident

through the following morning. Barks objected to Spencer’s request and claimed the

records were protected by the physician-patient privilege. In response, Spencer filed a

motion to compel Barks to produce the requested medical records or, in the alternative, a

motion to strike Barks’ affirmative defenses. In the motion, Spencer argued Barks “waived

the physician-patient privilege by affirmatively interjecting her intoxication into the case

via her affirmative defenses.”

After a hearing on the motion, the circuit court sustained Spencer’s motion to

compel discovery of Barks’ medical records related to her “alleged intoxication on the date

of the incident and following day.” Barks then filed a petition for writ of mandamus or

prohibition in the court of appeals, seeking to prevent the disclosure of her medical records.

The court of appeals denied Barks’ petition. Subsequently, Barks informed the circuit court

she was going to file a petition with this Court. In response, the circuit court ordered Barks

2 to produce the requested medical records within 20 days of March 25, 2021, unless her

petition to this Court was still pending.

On March 26, 2021, Barks filed a petition for writ of prohibition or mandamus with

this Court. This Court issued a preliminary writ of prohibition and commanded the circuit

court to take no further action in this matter, other than to set aside its order compelling

discovery of Barks’ medical records or show cause why this writ should not issue.

Jurisdiction and Standard of Review

This Court has jurisdiction to issue original remedial writs pursuant to article V,

section 4 of the Missouri Constitution.

A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.

State ex rel. Becker v. Wood, 611 S.W.3d 510, 513 (Mo. banc 2020) (quoting State ex rel.

Anheuser-Busch, LLC v. Moriarty, 589 S.W.3d 567, 570 (Mo. banc 2019)). Specifically,

“[p]rohibition is an appropriate remedy when a party is ordered to produce material that is

protected from discovery by some privilege. Otherwise, if privileged material were

produced, the damage to the disclosing party would be irreparable and could not be repaired

on appeal.” State ex rel. Stinson v. House, 316 S.W.3d 915, 918 (Mo. banc 2010) (citation

omitted).

3 The Physician-Patient Privilege

Section 491.060(5) 1 governs the physician-patient privilege in Missouri. Section

491.060(5) provides:

The following persons shall be incompetent to testify: … (5) A physician licensed pursuant to chapter 334, a chiropractor licensed pursuant to chapter 331, a licensed psychologist or a dentist licensed pursuant to chapter 332, concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist.

Notably, while section 491.060(5) speaks in terms of competence to testify, it is construed

as a privilege statute. State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 566 (Mo. banc

2006). “Any information a physician acquires from a patient while attending the patient

and which is necessary to enable the physician to provide treatment is privileged.” State

ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997). Additionally, the physician-

patient privilege applies to medical records. Dean, 182 S.W.3d at 567. The privilege is

for the patient’s benefit and belongs to the patient, not the physician. Id. at 566 n.5.

Therefore, even when medical records are directly relevant to a party’s claims, if they are

protected by the privilege, they are not discoverable. Stinson, 316 S.W.3d at 919. “The

purpose of the physician-patient privilege is to enable the patient to secure complete and

appropriate medical treatment by encouraging candid communication between patient and

1 All statutory references are to RSMo 2016, unless otherwise noted. 4 physician, free from fear of the possible embarrassment and invasion of privacy

engendered by an unauthorized disclosure of information.” Dean, 182 S.W.3d at 567

(citation omitted).

The physician-patient privilege is not absolute, however, and “[t]he fact that

documents fall within the scope of the physician-patient privilege does not end the

inquiry.” State ex rel. Health Midwest Dev. Grp., Inc. v. Daugherty, 965 S.W.2d 841, 844

(Mo. banc 1998). A patient can waive the privilege by either express or implied waiver.

Dean, 182 S.W.3d at 567. The most common waiver cases “involve plaintiffs who

voluntarily place their medical condition in issue by filing a petition alleging that they

suffered physical or mental injuries.” Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47,

63 (Mo. banc 1999). However, “[a] party may also impliedly waive the privilege

through an act showing a clear, unequivocal purpose to divulge the confidential

information.” Id. (emphasis added) (internal quotation marks and citations omitted); see

also Fitzgerald v. Metro. Life Ins. Co., 149 S.W.2d 389, 391 (Mo. App. 1941)

(holding: “To make out a case of implied waiver there must be a clear, unequivocal and

decisive act showing such purpose, or acts amounting to an estoppel. In other words, the

intention to waive must plainly appear or else the acts or conduct relied upon as constituting

a waiver must involve some element of estoppel.”).

Analysis

The parties agree Barks’ medical records fall within the scope of the

physician-patient privilege. On appeal, the sole question is whether Barks’ affirmative

5 defenses waive her physician-patient privilege. Spencer argues Barks’ affirmative

defenses constitute a waiver because they bring Barks’ physical condition into issue.

This Court addressed a physician-patient privilege waiver challenge in Rodriguez,

996 S.W.2d 47. In Rodriguez, vehicle manufacturer Suzuki sought to discover a defendant-

driver’s medical records following an accident. Id. at 61. The defendant had admitted to

drinking several glasses of wine prior to the accident. Id. The circuit court denied Suzuki’s

discovery requests, and Suzuki appealed. Id. Suzuki claimed the defendant waived her

physician-patient privilege by testifying she was not intoxicated in rebuttal to Suzuki’s

offer of proof and responding to questions concerning her intoxication on cross-

examination. Id. at 63. This Court disagreed, holding the defendant did not waive her

physician-patient privilege. Id. This Court first explained a denial of an allegation does

not constitute a waiver “because to do so would force the patient to choose between

suffering judgment by default or waiving the physician-patient privilege[.]” Id. This Court

then held that, by the same reasoning, the defendant’s rebuttal to Suzuki’s offer of proof

could not constitute a waiver. Id. The defendant did not waive her physician-patient

privilege “by introducing non-medical evidence at trial.” Id. at 63-64. “Furthermore, the

responses to questions on cross-examination that required her to divulge information about

her intoxication are considered ‘extorted’ and, therefore, involuntary.” Id. at 64.

Rodriguez approvingly cited State ex rel. Hayter v. Griffin, 785 S.W.2d 590 (Mo.

App. 1990), a wrongful death action arising out of a fatal highway accident. See Rodriguez,

996 S.W.2d at 63-64. In Hayter, the plaintiffs alleged Hayter’s diabetic condition caused

him to lose consciousness, resulting in the subsequent accident. Hayter, 785 S.W.2d at

6 592. Hayter and the other defendants denied the allegations and claimed the plaintiffs were

contributorily negligent. Id. at 593. Accordingly, the defendants sought for damages to be

reduced based on the doctrine of comparative fault. Id. On appeal, a key issue was whether

the defendants’ assertion of the affirmative defense of comparative fault constituted a

waiver of the physician-patient privilege. Id.

Ultimately, the court of appeals held the defendants’ affirmative defense did not

constitute a waiver of the physician-patient privilege because “comparative negligence

does not seek damages for any injury to Hayter. It is purely defensive.” Id. The court of

appeals explained, “A defendant who asserts that the plaintiff was negligent and entitled to

recover only on the basis of a comparison between the negligence of the parties remains an

involuntary participant in the proceeding.” Id. at 593-94 (quoting State ex rel. Taylor v.

Luten, 710 S.W.2d 906, 907-08 (Mo. App. 1986)).

The present situation is nearly identical to Hayter. Barks has not sought any

damages for injury, and her claims of comparative fault and assumption of risk are purely

defensive. 2 See Taylor, 710 S.W.2d at 908 (holding: “invoking the doctrine of comparative

negligence is an affirmative defense, not a claim for affirmative relief”). Affirmative

defenses must be affirmatively pleaded or they are waived. See Rule 55.08; Bateman v.

Platte Cty., 363 S.W.3d 39, 42 (Mo. banc 2012). Accordingly, Barks’ assertion of the

affirmative defenses of comparative fault and assumption of risk remains involuntary

2 The validity of implied secondary assumption of the risk as an affirmative defense is not at issue in this proceeding, so this Court does not consider the impact of the holding in Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 194 (Mo. banc 2014). 7 because she would have waived those defenses if she did not affirmatively plead them. It

would be “illogical and unacceptable” to require Barks to choose between waiving her

physician-patient privilege or forfeiting her affirmative defenses of comparative fault and

assumption of risk. Rodriguez, 996 S.W.2d at 63 (citing Hayter, 785 S.W.2d at 593).

Spencer argues the present situation is distinguishable from Rodriguez and Hayter

because Barks’ affirmative defenses must place her intoxication at issue. Spencer claims

that, to succeed on her affirmative defenses, Barks must prove the fact of her intoxication.

But Barks’ affirmative defenses as pleaded are of a nature that they are relevant only if

Spencer establishes Barks’ intoxication as alleged in Spencer’s petition. If Spencer

introduces evidence at trial establishing Barks’ intoxication, then Barks may rely on

Spencer’s evidence to pursue and establish her affirmative defenses and will not have

waived her physician-patient privilege.

Additionally, although Barks’ medical records may quickly and definitively

establish whether Barks was intoxicated, “[t]he mere fact that the privileged medical

records may be relevant … does not mean that the medical records are discoverable. The

very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant

and discoverable from the scope of discovery.” Stinson, 316 S.W.3d at 919.

Finally, Spencer contends the assertion of the physician-patient privilege is unfair

in this situation. 3 This Court recognizes “the privilege is always invoked at the expense of

3 This Court is cognizant of the threat that may be posed by allowing a party to raise an issue that may lead to a delayed waiver of the physician-patient privilege. In such a situation, the circuit court may exercise discretion to ensure the party does not receive an 8 truth-seeking” and the “equities supporting the privilege” are not great in all cases.

Rodriguez, 996 S.W.2d at 64. The privilege, however, is set by statute. Id. Consequently,

any challenges to the propriety of the physician-patient privilege in situations such as this

must be made to the legislature. Id.; see also State ex rel. McBride v. Dalton, 834 S.W.2d

890, 891 (Mo. App. 1992) (holding: “The statute prevails over respondent’s appeal to

‘justice’ as a reason to deny relator her statutory privilege to keep secret facts regarding

her medical care.”).

Conclusion

The preliminary writ of prohibition is made permanent.

______________________________ Robin Ransom, Judge

All concur.

unfair advantage. See State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. banc 1968) (holding the physician-patient privilege may not be used as both a “shield and dagger.”). 9