Hale v. Superior Court
ROBERT ALLEN HALE, as Personal Representative, Etc., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; CAROL DeFELICE Et Al., Real Parties in Interest
- Proceeding
- appeal
- Trial court
- Superior Court of San Diego County
- Trial judge
- Thomas R. Murphy
- Outcome
- other — D021574. Fourth Dist., Div. One.
- Area
- civil
- Panel
- Don R. Work (author)
Analysis
The trial court prohibited the estate from communicating with the decedent's treating physicians, asserting that the physicians were experts for the opposing party and thus only accessible via formal discovery. The Court of Appeal issued a peremptory writ of mandate, ruling that the trial court's order violated the doctor-patient privilege, which survives death and is held by the personal representative.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court order prohibiting the estate from contacting the decedent's treating physicians except through formal discovery.“Whatever else may be said about it, the ruling cannot stand as to the estate without doing violence to the doctor-patient privilege.” | unclear | error | agree with court The appellate court held that the trial court erred because the doctor-patient privilege belongs to the patient (and subsequently the personal representative) and is not waived merely because the physicians were designated as experts by the opposing party or because the patient was deceased. The court found that the privilege protects confidential communications and information obtained by examination, regardless of the patient's ability to communicate at the time of treatment or the opposing party's expert designation. |
Authorities
- relied: Carlton v. Superior Court (1968) 261 Cal.App.2d 282 — The relationship of patient and physician is established when a physician examines, diagnoses, or treats a patient, which is sufficient to invoke the doctor-patient privilege.
- relied: Jones v. Superior Court (1981) 119 Cal.App.3d 534 — Putting a medical condition in issue does not automatically waive the privilege as to other, unrelated aspects of the patient's medical history.
- relied: Rittenhouse v. Superior Court (1991) 235 Cal.App.3d 1584 — The doctor-patient privilege continues after the patient's death and may only be waived by the patient's personal representative.
- relied: Alexander v. Superior Court (1993) 5 Cal.4th 1218 — A peremptory writ of mandate is proper when the action is unusually urgent and requires acceleration.
- relied: Ng v. Superior Court (1992) 4 Cal.4th 29 — A peremptory writ of mandate is appropriate in urgent circumstances where the lower court's ruling cannot stand.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory definition of the doctor-patient privilege (Evidence Code § 990 et seq.) to determine that the privilege survives death and is held by the personal representative, effectively overriding the trial court's procedural restriction based on expert designation. The court properly distinguishes between the privilege held by the patient/estate and the discoverability of expert communications, noting that the latter was not properly before the court via mandate.
How this analysis was made · dispute it
unusual dispositionThe trial court barred plaintiffs the DeFelices from ex parte contact with the decedent Hale's treating physicians, whom they had designated as experts, but also refused to let Hale's estate communicate with those physicians except through formal discovery. The Court of Appeal issued a peremptory writ in the first instance directing the trial court to vacate the portion of its order prohibiting the estate from contacting the doctors, holding the physician-patient privilege belonged to Hale, survived her death, and vested in her personal representative; it declined to reach the restriction on the DeFelices because they had not petitioned.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order prohibiting Hale's estate from communicating with Hale's treating physicians except through formal discovery because the DeFelices had designated them as experts“Whatever else may be said about it, the ruling cannot stand as to the estate without doing violence to the doctor-patient privilege.” | unclear | error (law misapplied) | agree with court The court does not state a standard of review, but the question is one of law on the scope and holder of the Evidence Code section 990 et seq. privilege. Its three steps are supported: Carlton establishes the privilege attaches to hospital examination and treatment; section 992 defines confidential communication to include information obtained by examination, answering the argument that Hale could not speak; Jones limits implied waiver to conditions actually placed in issue; and Rittenhouse with section 993(c) confirms the privilege survives death and is held by the personal representative. Given that the estate holds the privilege, an order barring it from speaking with its own decedent's physicians was legal error. The opinion does not analyze the expert-designation scheme of Code of Civil Procedure section 2034 or explain why designating a treating (non-retained) physician as an expert could ever give the designating party exclusive informal access, but that omission does not undermine the result. |
Order prohibiting the DeFelices from ex parte contact with Hale's treating physicians whom they had designated as experts“Because the DeFelices failed to petition for writ of mandate challenging the order limiting their communications with the doctors, the issue is not properly before us.” | unclear | not reached | agree with court The DeFelices sought relief only in their return to the estate's petition and did not file their own writ petition, so the court correctly treated the issue as not before it. The court's dicta that communications between a party and its designated experts are generally discoverable by the opposing party is a passing comment unsupported by citation and not necessary to the decision; it is better understood as a response to the work-product framing than a holding. |
Authorities
- relied: Carlton v. Superior Court (1968) 261 Cal.App.2d 282 — A physician-patient relationship protected by the privilege arises between a hospitalized patient and the physicians who examine, diagnose, or treat her there.
- relied: Jones v. Superior Court (1981) 119 Cal.App.3d 534 — Placing part of one's medical condition in issue does not waive the privilege as to unrelated aspects of medical history or condition.
- relied: Rittenhouse v. Superior Court (1991) 235 Cal.App.3d 1584 — The physician-patient privilege survives the patient's death and may be claimed or waived by the personal representative.
- relied: Alexander v. Superior Court (1993) 5 Cal.4th 1218 — A peremptory writ in the first instance may issue where the matter is unusually urgent requiring acceleration.
- relied: Ng v. Superior Court (1992) 4 Cal.4th 29 — Peremptory writ in the first instance is proper under Code of Civil Procedure section 1088 in cases of unusual urgency.
The appellate opinion: sound with gaps — The opinion correctly identifies the estate as holder of the privilege under sections 992 and 993(c) and the cited cases, and that conclusion disposes of each of the DeFelices' three arguments. It is brief and skips any analysis of the expert-designation scheme that motivated the trial court's ruling and offers uncited dicta on discoverability of party-expert communications, but the result is well supported.
Opinion — Work
Opinion
WORK, J.Factual and Procedural Background
Lilian Hale (Hale) was driving on the wrong side of the road when she collided with a car driven by Carol DeFelice (DeFelice). Hale was taken to a hospital where it was determined she had severe left-side paralysis and multiple malignant brain tumors. She died 10 days later.
DeFelice and her husband (DeFelices) filed a personal injury action against Hale’s estate and personal representative (collectively estate) for *1423 negligence and loss of consortium. The estate answered that Hale was not negligent but rather the accident was an act of God.
The DeFelices listed two of Hale’s treating physicians as experts on their expert designation. When the estate learned the DeFelices had contacted the doctors without its permission, it sought an order restraining the DeFelices from making “ex parte” contact with the physicians but allowing the estate to communicate with them. The court prohibited contact with the doctors by the DeFelices, but refused to let the estate communicate with the doctors except through formal discovery because they had been designated as De-Felices’ experts.
The estate’s petition for writ of mandate contends it holds the doctor-patient privilege and cannot be precluded from speaking with its own physicians.
The DeFelices respond there are no privileged communications to protect because (1) the doctors only treated Hale in the hospital 10 days before she died when she could not communicate with them, (2) the estate put Hale’s entire medical condition into issue by arguing Hale had “an unknown medical condition” and (3) Hale is deceased and the estate is not the doctors’ patient. The DeFelices also ask us to allow them to contact the doctors informally outside normal discovery channels.
Discussion
Under the trial court’s ruling, neither the estate of the woman who was treated by the doctors nor the parties purportedly retaining them as experts may speak with the doctors unless they hire a reporter and take a deposition. Whatever else may be said about it, the ruling cannot stand as to the estate without doing violence to the doctor-patient privilege. 1
First, contrary to the DeFelices, the fact that the doctors only treated Hale in the hospital does not negate the doctor-patient privilege. The relationship of patient and physician was established between Hale and doctors at the hospital who examined her, diagnosed her and/or furnished her treatment as far as the privilege under Evidence Code 2 section 990 et seq. is concerned. (Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 288 [67 Cal.Rptr. *1424 568].) Nor does Hale’s alleged inability to communicate with the doctors thwart the privilege. The privilege extends to all “confidential communications,” a statutory term of art defined to include “information obtained by an examination of the patient.” (§ 992.)
Second, even if part of Hale’s medical condition is in issue, it does not follow that Hale waived the privilege as to otherwise protected aspects of her medical history during her lifetime, or some condition she may have suffered from at the time of her death clearly unrelated to the accident. (Jones v. Superior Court (1981) 119 Cal.App.3d 534, 547-548 [174 Cal.Rptr. 148].)
Finally, Hale’s death and the fact that the estate is not a patient are irrelevant: the privilege was Hale’s, it continues after her death, and only her personal representative can waive it. (Rittenhouse v. Superior Court (1991) 235 Cal.App.3d 1584, 1588 [1 Cal.Rptr.2d 595]; § 993, subd. (c).)
As such, it is clear that, if we can say the doctors who treated Hale in her final days “belong” to anyone, they “belong” to the estate. The estate has a right to freely communicate with Hale’s doctors, thoroughly investigate her condition with them, and assert the privilege to the extent it is appropriate.
Since the action is unusually urgent requiring acceleration, a peremptory writ in the first instance is proper. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218 [23 Cal.Rptr.2d 397, 859 P.2d 96]; Ng v. Superior Court (1992) 4 Cal.4th 29, 35 [13 Cal.Rptr.2d 856, 840 P.2d 961].)
Let a writ of mandate issue directing the superior court to vacate its ruling of July 8, 1994, prohibiting the estate from contacting the doctors and enter an order consistent with this opinion. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 24(d).)
Kremer, P. J., and Todd, 1, concurred.
Because the DeFelices failed to petition for writ of mandate challenging the order limiting their communications with the doctors, the issue is not properly before us. We add by way of dicta, however, to the extent the DeFelices complain the order interferes with their work-product communications with their own experts, all communications between a party and his designated experts are as a general rule discoverable by the opposing party.
A11 statutory references are to the Evidence Code unless otherwise specified.
Cites, in this corpus
- Alexander v. Superior Court S026431 · 1993-10-14
- Ng v. Superior Court S025119 · 1992-12-03
- Rittenhouse v. Superior Court C011854 · 1991-11-19
- Jones v. Superior Court Docket Nos. 49630, 50205 · 1981-05-28
- Carlton v. Superior Court Civ. 32513 · 1968-04-18
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