State v. Almonte

644 A.2d 295, 1994 R.I. LEXIS 228, 1994 WL 330633

• Court: Supreme Court of Rhode Island
• Decided: July 12, 1994
• Docket: 93-374-C.A.
• Status: Published

Opinions

OPINION

WEISBERGER, Acting Chief Justice.

This case comes before us on four questions of law certified by the Superior Court. The four certified questions are as follows:

“1. Does the Privileged Communications Act, § 9-17-24, violate Article 5 of the Rhode Island Constitution as an unconstitutional intrusion upon the function of the Judiciary?

“2. Does the Privileged Communications Act, § 9-17-24, violate Article 1, § 5, of the Rhode Island Constitution by denying a litigant, in this instance the State, the right to fully and fairly litigate its criminal prosecution of the defendant?

“3. Does the Privileged Communications Act, § 9-17-24, confer a legislatively granted privilege? If so, with whom does the privilege rest: the patient/defendant or the health-care provider?

“4. May the Superior Court order a health-care provider to disclose medical records when such disclosure does not meet the requirements of subsections 1 through 5 of section 9-17-24 of the General Laws?”

The facts giving rise to these certified questions are as follows. Raynaldo Almonte, defendant, was charged by indictment with the crime of first-degree arson. The date of the alleged offense was July 18, 1990. The defendant was also charged with witness intimidation, but this charge is not relevant to the certified questions.

Subsequent to defendant’s arraignment on the indictment, the state sought the issuance of a subpoena duces tecum in accordance with Rule 17(c) of the Superior Court Rules of Criminal Procedure. The state sought by this subpoena the production of records by Rhode Island Hospital relating to treatment that defendant had received on July 18,1990, for burn injuries sustained on or about that same date. The state claimed that defendant had admitted having committed the arson with which he was later charged to members of the hospital staff. For purposes of the certified questions these allegations by the state must be taken as true.

The motion justice agreed with the state that the evidence was relevant and material to the prosecution of defendant but expressed doubt concerning her ability to issue the subpoena in light of G.L.1956 (1985 Reenactment) § 9-17-24, as amended by P.L. 1989, ch. 503, § 1, which purports to grant a sweeping privilege against the compelled disclosure of medical information without the consent of the patient, with certain exceptions not applicable to this controversy. Section 9-17-24 reads as follows:

“Privileged communications to and information obtained by health care providers. — In every legal action, both civil and criminal, no health care provider shall be competent to testify concerning any information obtained about a patient nor shall he or she be required to produce any documentary evidence obtained about a patient in the course of the customary professional health care relationship, without the consent of the patient, his or her legal guardian, or, if the patient is deceased, his or her next-of-kin, executor or administrator. No health care provider shall be allowed in giving testimony to disclose any confidential communication or health care information, properly entrusted to him or her in his or her professional capacity and within the customary health care relationship, and necessary and proper to enable him or her to discharge medical duties in the usual course of practice, without the consent of the patient, his or her legal guardian, or, if the patient is deceased, his or her next-of-kin, executor or administrator. Notwithstanding the foregoing, a health care provider may be required to testify or produce documentary evidence regarding the medical condition of a patient:

(1) When a patient raises his or her own medical condition in a legal action;

(2) When a court determines that disclosure of health care information about a person is necessary to a determination of the perceptual capacity of that person as a witness in a legal proceeding and that information is unavailable from any source other than a health care provider;

(3) When a court orders or the parties to a legal action agree to a medical evaluation of a party or witness by a health care provider in order to facilitate the resolution of said legal action;

(4) When the question of competence of a decedent is at issue before the court; or

(5) When said consent is not required pursuant to chapter 37.3 of title 5; provided, however, that any such information shall not be admissible in any proceeding against the patient to whom such information pertains.”

In essence the first two certified questions seek our opinion (1) whether this statute is constitutional pursuant to the terms of article 1, section 5, and article 5 of the Constitution of the State of Rhode Island or (2) whether this statute constitutes an encroachment upon the judicial power of the state conferred upon the Supreme Court and such other courts as the General Assembly has established or may from time to time establish. In confronting this question, the court is not considering an issue of first impression. Indeed we have addressed and responded to nearly identical questions regarding a prior statute that is substantially the mirror image of § 9-17-24.

In Bartlett v. Danti, 503 A.2d 515 (R.I.1986), we were called upon to answer a series of certified questions from the Superior Court relating to G.L.1956 (1976 Reenactment) § 5-37.3-6, as enacted by P.L.1978, ch. 297, § l.¹ That statute, which was entitled the “Confidentiality of Health Care Information Act,” created a similar far reaching privilege that prohibited the disclosure of healthcare information in the absence of the consent of the patient. That statute set forth the privilege in the following terms:

“Legal process. — (a)(1) Except as provided in subparagraph (2) hereof, confidential health care information shall not be subject to compulsory legal process in any type of proceeding, including, but not limited to, any civil or criminal case or legislative or administrative proceedings or in any pre-trial or other preliminary proceedings, and a patient or his authorized representative shall have the right to refuse to disclose, and to prevent a witness from disclosing, his confidential health care information in any such proceedings.”

In Bartlett we were faced with the application of the foregoing statute to civil litigation arising out of an automobile accident in which the plaintiff sought highly relevant information from a health-care provider concerning disabilities of the defendant that might have impaired his ability to operate a motor vehicle as well as to testify concerning the events surrounding the accident. The broad privilege enacted by the General Assembly prohibited the obtaining of such information through compulsory legal process without the consent of the defendant. We noted that the effect of the statute was to give uncontrolled discretion over how the litigants and the trial courts of the state adjudicate disputes to the patient “who can decide with impunity whether to permit access to such information.” Bartlett, 503 A.2d at 517. We further stated:

“We conclude that § 5-37.3-6 is violative of article 1, section 5. We find that § 5-37.3-6, absent the patient consent mandated by § 5-37.3-4(a), precludes litigants from obtaining and introducing material evidence, thereby preventing litigants from effectively presenting their claims before the trier of fact.” 503 A.2d at 518.

We compared the operation of that statute to the effect that would result if a member of the Legislature had the right to obtain a continuance at his or her uncontrolled discretion, which issue we considered in Lemoine v. Martineau, 115 R.I. 233, 238, 342 A.2d 616, 620 (1975). We held in that case that the separation of powers mandated by article 3 (now article 5) prohibits legislative subversion or exercise of judicial power, citing Taylor v. Place, 4 R.I. 324 (1856).

The statute at issue in the case at bar was enacted subsequent to our decision in Bartlett v. Danti supra. It tracks with little modification the language set forth in the earlier statute declared unconstitutional by this court. It uses the word “competent” in respect to the ability of a health-care provider to testify and states that no health-care provider “shall be competent to testify concerning any information obtained about a patient.” However, this statute also creates a privilege since, despite the use of the word “competent,” such information may be produced with the consent of the patient or his or her legal representative. This statute was enactéd a few months subsequent to our decision in Bartlett in an obvious attempt to avoid our declaration of unconstitutionality in respect to the earlier statute. This statute refers to exceptions that are set forth in G.L.1956 (1987 Reenactment) chapter 37.3 of title 5 and contains as well certain exceptions in its own provisions.

The distinction between rules of incompetency and rules of privilege is often an elusive concept. Generally, rules of incompetency are exclusionary rules designed to guard against evidence that either is unreliable or may tend unduly to prejudice a party or mislead the finder of fact. On the other hand, rules of privilege have no such objective.

“They do not in any wise aid the ascertainment of truth, but rather they shut out the light. Their sole warrant is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.” McCormick’s Handbook of the Law of Evidence § 72 at 152 (Cleary 2d ed.1972).

A further distinction between competence and privilege is that normally a party to the litigation must object to incompetent evidence whereas the holder of a privilege may not be an adverse party to the litigation but may well be a person who is entirely a stranger to the litigation, excepting insofar as he or she might be a witness or might have an interest in the material to be disclosed. Id., § 73 at 152-53.

Unless we were to overrule our prior decision in Bartlett v. Danti, we must be constrained to answer these certified questions in the same manner as we did in Bartlett. We believe that our earlier decision was sound and necessary to prevent legislative encroachment upon the judicial function. We do not doubt the power of the Legislature to create a privilege as a matter of substantive law. See Privileged Communications to Clergymen, G.L.1956 (1985 Reenactment) § 9-17-23. However, we cannot allow the Legislature to create such a sweeping privilege with regard to health-care information as to cripple the ability of the Judiciary to try and determine a wide range of civil and criminal cases. We note that in the present statute as in the prior statute the Legislature set aside the need for patient consent in regard to a proceeding before the Workers’ Compensation Court or before any court proceeding relating to workers’ compensation. This exception was in recognition of the fact that the Workers’ Compensation Court could not operate without health-care information.

As we pointed out in Bartlett, the distinction between the Workers’ Compensation Court and the other trial courts of this state was arbitrary and without rational basis. As much as the Workers’ Compensation Court is dependent upon health-care information, so too are the trial courts in many areas of litigation equally dependent upon health-care information in order to reach rational results. This is true in criminal and in civil proceedings.

As an example of the bizarre results of this formidable privilege, let us consider the effect upon a long-enacted statute requiring the reporting of gunshot wounds. General Laws 1956 (1981 Reenactment) § 11-47-48 makes it a criminal offense for any physician who attends to or treats a person for a bullet wound, gunshot wound, or any other injury arising from or caused by the discharge of a gun, pistol, or other firearm, wherever treated, to fail to report such case at once to the police authorities of the town or the city where the physician, hospital, or other institution is located. Under the privilege created by § 9-17-24 (assuming that it does not overrule or supersede § 11-47-48), the physician who reported such a wound to the police could not testify in court about his treatment and observations without the consent of the patient. Thus this privilege would negate the policy of the reporting of gunshot wounds. This would apply even if the person treated were charged with robbery or murder and the medical evidence was vital to the prosecution.

We find nothing in this later statute that in any way changes our constitutional determination in respect to the prior privilege considered in Bartlett. This privilege is equally broad and equally intrudes upon the power of the judiciary to perform its function and upon the right of litigants to have access to the courts to resolve their disputes both civil and criminal.

In dissent our colleague points out that many jurisdictions have enacted or adopted privileges in respect to confidential communications between physicians and patients. This assertion is correct. However, there are distinctions among the types of privileges which have been enacted in other jurisdictions.

Unlike the Rhode Island privilege, the scope of the physician-patient privilege in most states is quite narrow, and only certain aspects of the physician-patient relationship are protected. For example, over seventy-five percent of the jurisdictions which recognize the physician-patient privilege protect only “confidential communications” from a patient. See Or.Rev.Stat. § 40.235, Rule 504-l(l)(a) & (2) (1993); see also Haw.Rev. Stat. § 626-1, Rule 504(a)(3) & (b) (1985); Nev.Rev.Stat. Ann. § 49.225 and § 49.215(1) (Michie 1986). The term “confidential communications” usually includes verbal communications from a patient to a physician, but does not include other “information” such as a physician’s or technician’s observations or physical examination of a patient. Therefore, the latter types of information would be admissible in a judicial proceeding in most jurisdictions.

This court has always been deferential in construing the powers of the General Assembly. See, e.g., Kass v. Retirement Board of the Employees’ Retirement System of the State of Rhode Island, 567 A.2d 358, 361 (R.I.1989); Forte Brothers, Inc. v. State, Department of Transportation, 541 A.2d 1194, 1196 (R.I.1988); Gorham v. Robinson, 57 R.I. 1, 17-19, 186 A. 832, 842 (1936). We have no doubt that the General Assembly could enact a statute dealing with confidential communications between a physician and a patient. However, the statute under consideration goes much further and substantially makes unavailable to the judicial process any health care information whether arising out of a confidential communication, or objective tests or observations. This is an intrusion upon the judicial power of the state which cannot be countenanced.

For the reasons stated, we answer question 1 in the affirmative. We answer question 2 in the affirmative. As a result of our answers to questions 1 and 2, it is unnecessary for us to answer question 3. In respect to question 4, we respond that the Superior Court may order a health-care provider to disclose medical records, whether or not such disclosure meets the requirements of subsections 1 through 5 of § 9-17-24 of the General Laws.

The papers in the case may be remanded to the Superior Court for further proceedings.

1 . When chapter 297, section 1 was published in the Public Laws, the joint committee on legislative services (committee) erroneously numbered the section as chapter 37.2 of title 5. Pursuant to its authority under G.L.1956 (1989 Reenactment) § 22-11-3.4, the committee renumbered the section as chapter 37.3 of title 5 upon publication in the General Laws.