DORIS HELLER, Plaintiff and Appellant, v. NORCAL MUTUAL INSURANCE COMPANY et al., Defendants and Respondents. DORIS HELLER, Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; NORCAL MUTUAL INSURANCE COMPANY et al., Real Parties in Interest.
No. S034539
Supreme Court of California
July 25, 1994
8 Cal. 4th 30
DORIS HELLER, Plaintiff and Appellant, v. NORCAL MUTUAL INSURANCE COMPANY et al., Defendants and Respondents.
DORIS HELLER, Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; NORCAL MUTUAL INSURANCE COMPANY et al., Real Parties in Interest.
Roger K. Vehrs, Thornton Davidson, Tritt & Tritt and James F. Tritt for Plaintiff and Appellant and for Petitioner.
Diehl, Steinheimer, Riggio, Haydel & Mordaunt, M. Max Steinheimer, Bryan D. Smith, Joseph H. Fagundes, Anderson, Galloway & Lucchese, G. Patrick Galloway, Karen A. Sparks, Diepenbrock, Wulff, Plant & Hannigan, Dennis M. Campos, Sean O. Sheridan and John R. Haluck for Defendants and Respondents and for Real Parties in Interest.
Horvitz & Levy, David S. Ettinger, Richard L. Hasen, Greines, Martin, Stein & Richland, Timothy T. Coates and Barry M. Wolf as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest.
No appearance for Respondent Superior Court.
OPINION
LUCAS, C. J.—In this case we consider whether unauthorized ex parte discussions that occur during the discovery phase of a medical malpractice action between a nonparty treating physician and the defendant physician‘s malpractice insurer, regarding the litigant patient‘s medical condition, violate either the Confidentiality of Medical Information Act (
We granted review to consider whether plaintiff‘s seventh and eighth causes of action in her fourth amended complaint state claims against defendants Dr. Kent Yamaguchi (plaintiff‘s treating physician), and Valley
We must also determine whether these same ex parte discussions support plaintiff‘s 12th cause of action against Yamaguchi and Norcal (Yamaguchi and Geis‘s malpractice insurer) for violation of plaintiff‘s constitutional right to privacy under
As we explain, we conclude that because the purpose of the ex parte discussions was to assist Norcal in defending the malpractice action against Geis, Yamaguchi (and VPSMG) are exempt from liability under
FACTS
Our review arises out of the trial court‘s sustaining of defendants’ demurrers to plaintiff‘s fourth amended complaint without leave to amend, and the
In 1987, plaintiff was admitted to Sierra Hospital for removal of a bone spur from her left hand. Shortly after the surgery, she developed a postoperative staphylococcal infection, diagnosed and treated by Geis. As a direct result of the infection, plaintiff‘s third finger on her left hand had to be amputated in two separate surgeries. Both surgeries were performed by Geis, with Yamaguchi assisting. Thereafter, plaintiff dismissed Geis as her treating physician, believing his treatment of her was negligent. Yamaguchi continued to treat plaintiff for symptoms relating to the infection following the second operation. In 1988, plaintiff sued Geis for medical malpractice. Although Yamaguchi was not a party to the action, he agreed to appear as an expert defense witness on behalf of Geis.
During the discovery phase of the lawsuit, plaintiff deposed Yamaguchi, who revealed that Norcal conducted several private interviews with him (while he was still treating plaintiff), during which he discussed plaintiff‘s condition and prognosis and disclosed plaintiff‘s medical records. According to plaintiff, Yamaguchi also agreed with Norcal to testify falsely that the treatment provided to plaintiff by Geis was within the professional standard of care. Plaintiff claimed that Yamaguchi and Norcal attempted to coerce her into settling her case against Geis for significantly less than her eventual settlement of $400,000.
After settling her action against Geis, she brought the present action, claiming the disclosure of her medical information violated
Plaintiff appealed from the judgment of dismissal. In addition, plaintiff sought a writ of mandate compelling the trial court to set aside its order
In reversing the trial court judgment in part, the Court of Appeal observed that although the medical information obtained by Norcal from Yamaguchi may have been legally discoverable during the course of the Geis litigation, the method used to discover the information (i.e., private conversations that took place before the issuance of subpoenas and notice of depositions), violated
The court also rejected defendants’ claim that the actions were barred by the litigation privilege of
Defendants Yamaguchi and VPSMG challenge the Court of Appeal‘s reversal of the trial court‘s dismissal of the seventh and eighth causes of action for violation of
1. Section 56 et seq.
As reenacted,
Thus, in order to violate the act, a provider of health care must make an unauthorized, unexcused disclosure of privileged medical information. A provider is relieved from liability under the act if it can show that the disclosure is excepted either by the mandatory (
Plaintiff claims that by disclosing her medical information to Norcal without her authorization, defendants violated the act. We agree with defendants and amici curiae, however, that defendants’ ex parte contact with Norcal was contemplated by the permissive exception to the act under
The plain meaning of
Justice Mosk‘s concurring and dissenting opinion assumes
Other provisions of the act support our interpretation.
The Legislative Counsel‘s Digest describes
“This bill would provide that whenever, prior to service of a complaint in an action arising out of the professional negligence of a physician, a demand for settlement or offer of compromise is made, the demand or offer shall be accompanied by an authorization to disclose medical information to persons or organizations insuring, responsible for, or defending professional liability.” (Legis. Counsel‘s Dig., Sen. Bill No. 1229 (1985-1986 Reg. Sess.).)
Thus, legislative history demonstrates that prior to the enactment of
Finally,
As the above provisions show,
Plaintiff asserts that the common law prohibits ex parte contacts between physicians and their insurers and allows communication during “formal discovery” proceedings only in order to protect physician-patient confidentiality. Plaintiff relies on Torres v. Superior Court (1990) 221 Cal.App.3d 181, 187 [270 Cal.Rptr. 401] (hereafter, Torres) to support her position. (Accord, Province v. Center for Women‘s Health & Family Birth (1993) 20 Cal.App.4th 1673, 1684-1687 [25 Cal.Rptr.2d 667] [hereafter, Province].)
The Torres court was asked to determine whether a nonparty physician who treated a malpractice claimant may testify as an expert for the defense on the standard of care employed by subsequent treating physicians. Although the plaintiff had conceded a “limited waiver” of his statutory physician-patient privilege as defined in
The Torres court held that the physician could testify subject to a protective order prohibiting ex parte interviews between defendant‘s counsel and the physician-expert witness to ensure plaintiff‘s physician-patient relationship would remain protected. (Torres, supra, 221 Cal.App.3d at p. 188.) Plaintiff asserts that Torres essentially prohibits all ex parte communication between a physician and his patient‘s adversaries in litigation.
Torres is inapposite. The Confidentiality of Medical Information Act was not an issue in the case. Dr. Yamaguchi never testified, and plaintiff never challenged his ability to do so. Nonetheless, to the extent Torres and Province could be read to prohibit all ex parte contacts between a physician and his attorneys or insurers, in conflict with this opinion, those cases are disapproved.
2. Constitutional Right of Privacy
Plaintiff‘s 12th cause of action names as defendants Yamaguchi and Norcal only, and alleges that Yamaguchi secretly disclosed confidential information to Norcal and its agents and employees in violation of plaintiff‘s constitutional right to privacy under
Although the Urbaniak decision may have been correct in its discussion of the right to privacy in the context of unauthorized disclosure of a patient‘s HIV status, we view the present plaintiff‘s privacy claims in a different light. Specifically, this claim must be analyzed under our recent decision in Hill, supra, 7 Cal.4th 1.3
In Hill, supra, we held that “a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish
We also noted in Hill, however, that “[a] defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests. Plaintiff, in turn, may rebut a defendant‘s assertion of countervailing interests by showing there are feasible and effective alternatives to defendant‘s conduct having a lesser impact on privacy interests.” (7 Cal.4th at p. 40.) We held that “in cases where material facts are undisputed, adjudication as a matter of law may be appropriate.” (Ibid.)
We conclude that, as a matter of law, plaintiff has failed to state a cause of action for invasion of her state constitutional privacy interest. This conclusion is based on the fact that plaintiff did not adequately plead facts supporting a conclusion that any expectation of privacy as to her medical condition would be reasonable under the circumstances of this case. Thus, plaintiff has failed to establish the second essential element of a state constitutional cause of action for invasion of privacy.4
In Hill, we held that the extent of a privacy interest is dependent on the circumstances. We emphasized that “[e]ven when a legally cognizable privacy interest is present, other factors may affect a person‘s reasonable expectation of privacy. For example, advance notice of an impending action may serve to ‘limit [an] intrusion upon personal dignity and security that would otherwise be regarded as serious.’ ” (7 Cal.4th at p. 36.)
By placing her physical condition in issue in the Geis litigation, plaintiff‘s expectation of privacy regarding that condition was substantially lowered by the very nature of the action. As we stated in Hill, supra, 7 Cal.4th at page 37, a ” ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. (See e.g., Rest.2d Torts, [] § 652D, com. (c) [‘The protection afforded to the plaintiff‘s interest in his privacy must be relative to the customs of the time and
Finally, as we observed in Hill, supra, 7 Cal.4th at page 37, when determining the existence (or not) of a constitutionally protected claim, we must weigh the severity of each potential invasion of privacy: “No community could function if every intrusion into the realm of private action, no matter how slight or trivial, gave rise to a cause of action for invasion of privacy. . . . Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.”
The discussions between Yamaguchi and Norcal could not be considered sufficiently serious in their scope or impact to give rise to an actionable invasion of privacy. (Hill, supra, 7 Cal.4th at p. 37.) Because the information would most likely have been discovered during the ordinary course of litigation, defendants’ conduct in revealing information about plaintiff‘s treatment and physical condition does not violate the state constitutional guarantee against invasion of privacy as a matter of law. Accordingly, we need not reach plaintiff‘s claim that a constitutional invasion of privacy defeats application of the litigation privilege.
Plaintiff asserts the Court of Appeal erred in upholding the trial court judgment sustaining defendants’ demurrers to the second through sixth, and eleventh, causes of action. As the Court of Appeal observed, these causes of action are all grounded on common law torts—negligent and intentional infliction of emotional distress, interference with the physician-patient relationship, and concealment. Plaintiff claims she suffered injury because, in her litigation against Geis, defendants used information they had wrongfully obtained. The Court of Appeal held that the litigation privilege of
We agree with the Court of Appeal. We have consistently held that communications occurring during the course of litigation are absolutely privileged under
Finally, plaintiff asserts that the Court of Appeal erroneously affirmed the trial court‘s judgment sustaining defendants’ demurrer to the 10th cause of action against Yamaguchi, VPSMG, and Norcal for conspiring to commit unfair business practices in violation of
CONCLUSION
We conclude that plaintiff has failed to state a cause of action for violation of
Arabian, J., Baxter, J., George, J., and Peterson, J.,* concurred.
MOSK, J., Concurring and Dissenting.—
I
The majority assert that the Confidentiality of Medical Information Act (
The purpose of the Act is to provide reasonable protection for the confidentiality of patient‘s medical records. (Stats. 1981, ch. 782, § 1, p. 3040.) “It is the intention of the Legislature in enacting this act, to provide for the confidentiality of individually identifiable medical information, while permitting certain reasonable and limited uses of that information.” (Ibid.)
The basic scheme of the Act is that a medical provider must not disclose medical information without a written authorization from the patient. There are exceptions. Thus,
Before I examine the exceptions, it is important to consider what sort of authorization the Legislature requires pursuant to its basic rule. The Legislature has been quite demanding. An authorization is valid if it is handwritten or typed in legible type on a separate piece of paper and is properly signed and dated by the patient or enumerated substitutes. (
*Presiding Justice, Court of Appeal, First Appellate District, Division Five, assigned by the Acting Chairperson of the Judicial Council.
¹All statutory references are to the Civil Code unless otherwise indicated.
These provisions demonstrate an interest in assuring that medical information be disclosed only for a narrowly defined purpose, to an identified party, for a limited period of time.
The authorization is not a mere formality that may be overlooked, but is, under normal circumstances, a sine qua non. We can see this because sometimes the patient is required to provide an authorization. (
The disclosure in this case was not made pursuant to any authorization, nor does there appear any claim that plaintiff should have provided an authorization under
The question remains whether any of the statutory exceptions to the authorization requirement apply.
The Act provides that disclosure is required even in the absence of an authorization when compelled by court order, subpoena, or search warrant or “otherwise specifically required by law.” (
The Act also provides that disclosure is permissible without an authorization in several types of situations. Disclosure is permissible to other health care providers “for purposes of diagnosis or treatment of the patient.” (
Disclosure is also permissible for the purpose of licensing or accrediting a provider of health care (
The majority hold that the exception described in
The majority assert that because Dr. Yamaguchi was in danger of medical malpractice exposure as the associate of a doctor whom his patient was already suing, Dr. Yamaguchi came under
The interpretation is ungrammatical. The term “professional liability which a provider may incur” is part of an entire adjectival clause that
The phrase specifies that the persons or organizations to whom medical information may be disclosed must be those that are insuring or are responsible for or are defending malpractice liability. It does not describe under what circumstances the disclosure may be made, but merely describes the recipient. The language describing under what circumstances the disclosure may be made comes later in the paragraph, starting with the word “if.”
Thus the phrase upon which the majority rely does not mean that a doctor who is afraid he or she—or an employee—“may incur” malpractice liability may disclose patient‘s records to the insurer. Nor does it mean that a doctor would be a “person defending professional liability,” because throughout the Act, doctors are referred to as “providers.” And, as I have noted, the section describes persons and organizations to whom information may be disclosed. This description does not refer to the doctor who possesses the records. In any case, there is certainly no evidence that Dr. Yamaguchi was defending his professional liability when he made the disclosures—nor am I aware of any evidence in the record before us establishing that Dr. Yamaguchi actually “might incur” malpractice liability at the time he made the disclosure.
The majority also claim that the term “quality of care” includes the question of malpractice liability, so that an insurer defending a malpractice claim would be a proper recipient of disclosure under
Such an interpretation is inconsistent with the general purpose of the Act to restrict disclosure of medical records except as specifically provided by the Act, and renders the particular provision of the Act regarding informal discovery in malpractice actions meaningless surplusage. It is also inconsistent with the general purpose of the subdivision. Finally, it would interpret the phrase “quality of care” as referring to malpractice liability, though a different term has been used in the statute that applies specifically to malpractice actions.
We should not interpret isolated phrases in
My interpretation is supported by legislative history. When this subdivision was first enacted, it was labeled “For peer review of physicians.” (Former
In 1981, the Act was revised, adding
We should infer that “quality of care” means basically the same term it meant in 1979, that is, that the information is to be disclosed only if the organizations or persons seeking disclosure are engaged in determining whether a provider is adequately qualified to receive the organization or person‘s approval, membership or services.
Defending a malpractice action does not meet this qualification. In such circumstances, the issues are liability and damages, not competence or qualification. When the Legislature has wished to describe the function of a malpractice carrier in defending a claim for malpractice, it has described that function in quite different terms than are used in
We must read
I cannot understand the majority‘s claim that
The majority claim that its interpretation is necessary to serve the goal of reasonable, informal pretrial discovery in order to promote settlement. But this goal is already served by
II
Although I would find that the disclosure plaintiff complains of was not permitted by the Act, nonetheless I would hold that the litigation privilege of
As it is undisputed that the communication at issue here between Dr. Yamaguchi and the insurer had a clear relationship to the lawsuit against Dr. Geis, it seems clear on the face of the matter that the litigation privilege should apply.
The Court of Appeal found otherwise, concluding that conduct, rather than communication, was at issue.
We recently made this distinction even more clearly in Rubin v. Green, supra, 4 Cal.4th 1187. There we held that an attorney‘s solicitation of business in possible violation of the Business and Professions Code was essentially communicative, and therefore privileged under
Thus the defendant‘s violation of the Act in this case, like the possible violation of the Business and Professions Code in Rubin v. Green, supra, 4 Cal.4th 1187, does not by itself strip him of the protection of the litigation privilege. The relevant question is not whether defendant violated a statute, but whether defendant injured plaintiff through conduct or through communication.
III
Plaintiff has alleged that defendant‘s disclosure of confidential information about her medical condition was a violation of her constitutional right to privacy under
In Hill, supra, 7 Cal.4th 1, we held that “a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Id., at pp. 39-40.) Although I disagree with this standard (id., at p. 73 et seq. (dis. opn. of Mosk, J.)), it is the law.
A plaintiff who brings a malpractice action has a limited expectation of privacy in his or her medical records. Although I would find the particular disclosure inappropriate under the Act, a plaintiff bringing such an action is required to make substantial disclosures regarding medical history during formal and informal discovery. (
Finally, defendant‘s disclosures do not represent the serious invasion of privacy that we said should be actionable in Hill, supra, 7 Cal.4th 1. Rather, defendant‘s disclosures, though painful as far as plaintiff was concerned, actually may have served another right of constitutional magnitude, that is, the right of free access to the courts. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1133 [270 Cal.Rptr. 1, 791 P.2d 587].) As we said in Rubin v. Green, supra, 4 Cal.4th 1187, “[u]ndergirding the immunity conferred by
Accordingly, I would conclude that plaintiff has failed to make out a claim for violation of the constitutional right to privacy under
IV
I dissent from the conclusion of the majority that plaintiff failed to state a cause of action for violation of
KENNARD, J., Concurring and Dissenting.—I agree with the majority that a doctor does not violate the Confidentiality of Medical Information Act (
But I part company with the majority and with Justice Mosk when it comes to the right of privacy guaranteed by our state Constitution. Although it is true that by asserting a medical malpractice claim a patient relinquishes the right of privacy as to matters directly relevant to the claim and essential to its fair resolution, the patient retains in full the right of privacy as to all confidential information not meeting this strict test of legal relevance.
Finally, I do not join the majority to the extent it may appear to give unqualified approval to ex parte interviews1 of a medical malpractice plaintiff‘s doctor, without the knowledge or consent of the plaintiff or the plaintiff‘s counsel. The propriety of this practice has sharply divided this country‘s appellate courts, and I would leave this matter open for resolution in a proper case.
I. FACTS
Dr. Geis treated plaintiff Doris Heller for an infection in one finger. Despite Geis‘s treatment, the infection worsened to the point that it became necessary to amputate the finger. Geis and Dr. Yamaguchi performed the amputation, which occurred in two stages. After the amputation, plaintiff developed reflex sympathetic dystrophy, which is characterized by burning pain and swelling. Yamaguchi treated plaintiff for this condition.
While plaintiff was under the care of Dr. Yamaguchi, she commenced suit against Dr. Geis for malpractice in the diagnosis and treatment of the original infection. During the course of this lawsuit, Yamaguchi was deposed and he revealed that a representative of Norcal Mutual Insurance Company (the professional liability insurer of both Geis and Yamaguchi; hereafter Norcal) and the lawyer who was representing Geis had interviewed Yamaguchi on several occasions. Following this revelation, plaintiff settled her action against Geis and commenced this action against Yamaguchi, Norcal, and others.
In the complaint at issue here (plaintiff‘s fourth amended complaint), plaintiff has alleged that Norcal and Dr. Yamaguchi “conspired and agreed to obtain and release private, intimate, personal, financial, and confidential medical information and records without the consent or knowledge of [plaintiff] or her attorney.” Plaintiff further alleges that this information and these records were “obtained and provided to Norcal in order to obtain an economic advantage over [plaintiff] in her suit against Dr. Geis . . . .”
Yamaguchi and Norcal each challenged plaintiff‘s complaint by demurrer. The trial court sustained Norcal‘s demurrer without leave to amend as to each of plaintiff‘s claims against Norcal, and it granted a judgment dismissing Norcal from the action. As for Yamaguchi, the trial court overruled his demurrer to the cause of action for medical negligence, and it sustained without leave to amend Yamaguchi‘s demurrer to each of the other causes of action. Plaintiff appealed from the judgment of dismissal in favor of Norcal, and she petitioned the Court of Appeal for a writ of mandate to overturn the trial court‘s ruling barring each of her claims against Yamaguchi except the claim for medical negligence.
The Court of Appeal issued an order to show cause on plaintiff‘s mandate petition, and it consolidated that proceeding with the appeal from the judgment of dismissal in favor of Norcal. In its opinion in these consolidated proceedings, the Court of Appeal held that the litigation privilege (
II. THE CONFIDENTIALITY OF MEDICAL INFORMATION ACT
In simple language, the Confidentiality of Medical Information Act (
At issue here is this exception: “A provider of health care may disclose medical information . . . [
This language, dense and opaque on first reading, appears on closer examination to fit the situation alleged in this case, in which a doctor (Yamaguchi) released to a representative of a professional liability carrier (Norcal), and to an attorney, medical information about a patient (plaintiff) who had asserted a claim of medical malpractice against another doctor (Geis) who was the carrier‘s insured and the attorney‘s client. To evaluate plaintiff‘s claim for settlement purposes, and to prepare a defense in the event of trial, Norcal and Geis‘s lawyer of necessity had to determine whether the professional services that Geis had supplied to plaintiff measured up to the prevailing standard of care. To make that determination, they sought and obtained medical information in Yamaguchi‘s possession. Isolating the relevant statutory language, it appears that a doctor or other provider of health services may disclose medical information “to persons or organizations insuring, responsible for, or defending professional liability which a provider may incur, if the . . . organizations, or persons are engaged . . . in reviewing health care services with respect to . . . quality of care . . . .” (
I hasten to add two observations. First, the exception at issue here is permissive, not mandatory. When a patient has asserted a malpractice claim against one doctor, another doctor treating the same patient “may” disclose medical information to the insurer or attorney representing the accused doctor. (
Second, the statute says nothing about the circumstances under which the authorized disclosure of confidential medical information is to take place. Thus, the statute does not purport to answer the question whether such disclosure should be permitted to occur in secret, without prior notice to the
III. THE LITIGATION PRIVILEGE
Because it promotes the finality of judgments, encourages open channels of communication in judicial proceedings, and allows attorneys to zealously protect their clients’ interests without fear of retribution by opposing litigants, the litigation privilege of
IV. THE CONSTITUTIONAL RIGHT OF PRIVACY
The California Constitution declares that “All people are by nature free and independent and have inalienable rights,” and that among these inalienable rights are “obtaining safety, happiness, and privacy.” (
In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633], this court held that the privacy clause of the state Constitution “creates a right of action against private as well as government entities.” (Hill v. National Collegiate Athletic Assn., supra, at p. 20.) We further held that the elements of a claim for violation of the constitutional privacy right are: “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Id., at pp. 39-40.)
Here, both the majority and Justice Mosk conclude that plaintiff‘s complaint is defective as to the second element—the reasonable expectation of privacy. They note that by bringing a malpractice action against Dr. Geis, plaintiff opened her medical history to discovery as to matters put in issue by the allegations against Geis.
As this court has observed, “Plaintiff is not compelled, as a condition to entering the courtroom, to discard entirely her mantle of privacy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841-842 [239 Cal.Rptr. 292, 740 P.2d 404].) Although the filing of a lawsuit may be deemed a waiver of privacy as to matters embraced by the action, we have emphasized that the scope of this waiver “must be narrowly rather than expansively construed.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859 [143 Cal.Rptr. 695, 574 P.2d 766]; accord, Vinson v. Superior Court, supra, at p. 842.) Matters that would otherwise be protected by the constitutional privacy right are discoverable only if “directly relevant to the plaintiff‘s claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court, supra, at p. 842.) The party seeking access to constitutionally protected information has the burden of proving direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017 [9 Cal.Rptr.2d 331].)
For example, the Court of Appeal has held that a plaintiff who seeks damages for personal injuries, including pain and suffering, does not thereby surrender the right to privacy in postinjury psychotherapeutic records. (Davis v. Superior Court, supra, 7 Cal.App.4th 1008, 1017.) The court summarized its conclusion this way: “By limiting her claim for emotional distress to pain and suffering associated with stated physical injuries, and by explaining that the [Cedar Women‘s Center] provided no treatment in connection with the injuries for which compensation was sought, petitioner established that it is not reasonably probable that the records are directly relevant to the condition she placed in issue.” (Ibid.)
This court reached essentially the same conclusion when construing the scope of the patient-litigant exception to the doctor-patient privilege (
In Britt v. Superior Court, supra, 20 Cal.3d 844, owners and residents of homes near an airport brought suit against the owner of the airport seeking, among other things, damages for personal injuries and emotional disturbance caused by the noise, vibrations, air pollution, and smoke produced by operation of the airport. During discovery, the airport owner served the plaintiffs with interrogatories demanding a complete account of each plaintiff‘s lifetime medical history, including any treatment for mental or emotional disturbance. In this court, the airport owner asserted that under the patient-litigant exception, a patient waived the doctor-patient and psychotherapist-patient privileges by instituting a claim for physical or mental injury. As we had done previously (see In re Lifschutz (1970) 2 Cal.3d 415, 435 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]), this court “emphatically rejected such a broad rendition of the statutory exception.” (Britt v. Superior Court, supra, at p. 863.) We concluded that plaintiffs were “entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Id. at p. 864.)
Here, the complaint alleged, as I previously noted, that Dr. Yamaguchi disclosed to Norcal “private, intimate, personal, financial, and confidential medical information and records without the consent or knowledge of [plaintiff] or her attorney.” Because the case comes before us on demurrer, we must assume that the allegations of the complaint are true, and we may not look beyond those allegations to ascertain the facts. To conclude, as the majority and Justice Mosk do, that all of the confidential material Yamaguchi disclosed to Norcal was directly relevant to plaintiff‘s malpractice claim against Dr. Geis and essential to that claim‘s fair resolution is sheer speculation, and improbable speculation at that. In particular, it is difficult to conceive how financial information, disclosed in confidence in the course of
The majority asserts in a footnote that any information plaintiff disclosed to Yamaguchi concerning her financial and emotional state would be unrelated to her medical condition and for this reason not protected by the constitutional privacy right. (Maj. opn., ante, p. 43, fn. 4.) As authority for this assertion the majority cites only Kizer v. Sulnick (1988) 202 Cal.App.3d 431, 439 [248 Cal.Rptr. 712], but in that case the court concluded that no doctor-patient relationship had existed. Here, it is undisputed that plaintiff was Dr. Yamaguchi‘s patient. Consistent with the Evidence Code‘s definition of confidential information provided in
When a patient has disclosed information to a doctor in confidence, in the course of their professional relationship, a requirement that the information be medically relevant before it will qualify for legal protection is, in my view, destructive of the confidence and trust that are essential to a healthy physician-patient relationship, and it is inconsistent with the purposes of the constitutional privacy right. This is because patients generally cannot be expected to know when information is or is not medically relevant. As one court has put it: “Since the layman is unfamiliar with the road to recovery, he cannot sift the circumstances of his life and habits to determine what is information pertinent to his health. As a consequence, he must disclose all information in his consultations with his doctor—even that which is embarrassing, disgraceful or incriminating. To promote full disclosure, the medical profession extends the promise of secrecy . . . .” (Hammonds v. Aetna Casualty & Surety Company (N.D.Ohio 1965) 243 F.Supp. 793, 801.) Not knowing when information is medically relevant, but advised by this court that only medically relevant information is protected, patients will be inhibited in relating sensitive or potentially embarrassing information to their physicians.
Because the complaint does not show on its face that all the information Dr. Yamaguchi disclosed was directly relevant to the matters at issue in
V. EX PARTE INTERVIEWS WITH LITIGANT‘S DOCTOR
Should the law permit a party litigant to privately interview and obtain medical information from the opposing party‘s doctor without the opposing party‘s knowledge or consent? Published decisions of federal courts and courts of our sister states have debated this question with great thoroughness and have given conflicting answers. (See generally, Annot., Discovery: Right to Ex Parte Interview with Injured Party‘s Treating Physician (1986) 50 A.L.R.4th 714.) There is also no shortage of commentary in legal publications. (See, e.g., Woodard, Shielding the Plaintiff and Physician: The Prohibition of Ex Parte Contacts with a Plaintiff‘s Treating Physician (1991) 13 Campbell L.Rev. 233; Corboy, Ex Parte Contacts Between Plaintiff‘s Physician and Defense Attorneys: Protecting the Patient-Litigant‘s Right to a Fair Trial (1990) 21 Loy. U. Chi. L.J. 1001; Asher, Ex Parte Interview with Plaintiff‘s Treating Physicians—The Offensive Use of the Physician-Patient Privilege (1990) 67 U.Det. L.Rev. 501; Note, Restricting Ex Parte Interviews with Nonparty Treating Physicians: Crist v. Moffatt (1990) 69 N.C. L.Rev. 1381; Note, Defendants’ Right to Conduct Ex Parte Interviews with Treating Physicians in Drug or Medical Device Cases (1989) 73 Minn. L.Rev. 1451.)
The question is not squarely posed here. We must decide in this case whether disclosure of medical information during an interview is an actionable violation of the Confidentiality of Medical Information Act, but a conclusion that the conduct is not actionable under the statute does not mean that courts are powerless to prevent such interviews or to impose conditions. Nevertheless, the majority‘s rather offhand disapproval of Torres v. Superior Court (1990) 221 Cal.App.3d 181 [270 Cal.Rptr. 401] and Province v. Center for Women‘s Health & Family Birth (1993) 20 Cal.App.4th 1673 [25 Cal.Rptr.2d 667] “to the extent [they] could be read to prohibit all ex parte contacts between a physician and his [sic] attorneys or insurers” (maj. opn., ante, p. 41) makes further discussion necessary.
The relationship of doctor to patient is a fiduciary one. (Stafford v. Shultz (1954) 42 Cal.2d 767, 777 [270 P.2d 1].) A doctor has not only a legal obligation, grounded in the doctor-patient privilege (
As we have seen, a patient makes a limited waiver of the doctor-patient privilege by bringing an action for personal injury or medical malpractice. During the course of such litigation, the defendants have a right to discover any information in the possession of the plaintiff‘s treating physicians that is directly relevant to matters at issue and essential to their fair resolution. Thus, the question is not whether relevant information must be disclosed, but the method of such disclosure. (See Manion v. N.P.W. Medical Center (M.D.Pa. 1987) 676 F.Supp. 585, 593 [“. . . the prohibition against unauthorized ex parte contacts . . . affects defense counsel‘s methods, not the substance of what is discoverable“].)
Some courts see no reason to bar or restrict defense counsel from conducting ex parte interviews of the plaintiff‘s treating physicians (e.g., Lewis v. Roderick (R.I. 1992) 617 A.2d 119; Domako v. Rowe (1991) 438 Mich. 347, 360 [475 N.W.2d 30, 36]; Felder v. Wyman (D.S.C. 1991) 139 F.R.D. 85; Coralluzzo v. Fass (Fla. 1984) 450 So.2d 858; Doe v. Eli Lilly & Co. (D.D.C. 1983) 99 F.R.D. 126; Trans-World Investments v. Drobny (Alaska 1976) 554 P.2d 1148, 1152), and, in fact, have directed plaintiffs to execute authorization forms to facilitate the interviews. These courts emphasize, as does the majority here, that private interviews save time and money when compared to more formal methods of discovery (Domako v. Rowe, supra, 438 Mich. at p. 361; Doe v. Eli Lilly & Co., supra, at p. 128), and that the information disclosed in the ex parte interviews would be disclosed eventually anyway. They also maintain that private interviews are “conducive to spontaneity and candor in a way depositions can never be” (Doe v. Eli Lilly & Co., supra, at p. 128) and that they speed the settlement process by encouraging early investigation and evaluation of claims (Trans-World Investments v. Drobny, supra, 544 P.2d at p. 1152; Domako v. Rowe, supra, 438 Mich. at p. 361).
Taking a contrary position, other courts have held that in medical malpractice or personal injury litigation, defense counsel should never be permitted to interview a plaintiff‘s nonparty treating physician ex parte without
These courts point out that the spontaneity and candor that is one of the claimed virtues of informal interviews is also its principal vice. In the relaxed atmosphere of a private interview, a nonparty treating physician may be led to disclose confidential information not relevant to the litigation and therefore protected by the doctor-patient privilege and the doctor‘s professional obligation to preserve confidentiality.4 (See, e.g., Karsten v. McCray (1987) 157 Ill.App.3d 1, 14 [109 Ill.Dec. 364, 509 N.E.2d 1376, 1384]; Wenninger v. Muesing, supra, 307 Minn. 405, 410-411 [240 N.W.2d 333, 336-337]; Manion v. N.P.W. Medical Center, supra, 676 F.Supp. 585, 594.)
The very possibility of unauthorized disclosure, these courts maintain, is destructive of the trust essential to a secure and productive doctor-patient
In medical malpractice actions, moreover, defense counsel may use an ex parte interview with the plaintiff‘s doctor to solicit sympathy for the defendant, and thereby compromise the doctor‘s loyalty to the patient: “An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury‘s award upon a physician‘s professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physician‘s views. The potential for impropriety grows even larger when defense counsel represents the treating physician‘s own insurance carrier . . . .” (Manion v. N.P.W. Medical Center, supra, 676 F.Supp. 585, 594-595; see also Duquette v. Superior Court, supra, 161 Ariz. 269, 276 [778 P.2d 634, 641]; Anker v. Brodnitz, supra, 98 Misc.2d 148, 153 [413 N.Y.S.2d 582, 585].)
The New Jersey Supreme Court has articulated a middle ground, in an attempt to reconcile the competing interests. In Stempler v. Speidell (1985) 100 N.J. 368 [495 A.2d 857, 50 A.L.R.4th 699], the court crafted a rule under which plaintiffs may be required to authorize their treating physicians to hold ex parte interviews with attorneys for the defendants, but on the condition that the defense lawyers provide the plaintiff‘s lawyers with reasonable notice of the time and place of the interviews, a description of the anticipated scope of the interviews, and assurances that the physicians will be advised that their participation is entirely voluntary. The aim of the procedure is to provide plaintiffs’ lawyers with an opportunity to advise the doctors in advance of “any appropriate concerns as to the proper scope of the interview, and the extent to which plaintiff continues to assert the patient-physician privilege with respect to that physician.” (Id. at p. 382 [495 A.2d at p. 864].) The court recognized that in particular cases these safeguards might not be adequate: “Plaintiff may also seek and obtain a protective order if under the circumstances a proposed ex parte interview with a specific physician threatens to cause such substantial prejudice to plaintiff as to warrant the supervision of the trial court. Such supervision could take the form of an order requiring the presence of plaintiff‘s counsel during the interview or, in extreme cases, requiring defendant‘s counsel to proceed by deposition.” (Id. at p. 383 [495 A.2d at pp. 864-865].)
CONCLUSION
“The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.” (Doe v. Bolton (1973) 410 U.S. 179, 219 [35 L.Ed.2d 201, 191, 93 S.Ct. 739] (conc. opn. of Douglas, J.).) For violation of that privacy right, our state Constitution provides a remedy by means of an action for damages. Here, plaintiff‘s complaint alleges that her treating physician, Yamaguchi, engaged in wide-ranging ex parte discussions that may have disclosed intimate matters not relevant to plaintiff‘s pending malpractice action. I would hold that plaintiff has stated a claim under our state Constitution for violation of her right of privacy.