*1 September En 39880. Banc. [Nos. 1968.] Administrator, al., Petitioners, et A. v. Norvin W. Phipps, al., et Respondents.
Sasser
al.,
et
v. Dale
Respondents,
Andrew Jackson Ashurst
al.,
et
Petitioners.*
Williams
*Reported in
Schroeter, Jackson, Talbot &
Sanford
Phipps
petitioners
et al.
Talbot,
and Chas. H.
for
W.
petitioners
Thomas D.
for
Williams.
Loftus,
Hugh
Horton,
Bennett,
Horton &
B.
Horton, Wilkins,
respondents
Sasser.
Jackson,
Paul D.
Smith,
&
Schroeter, Jackson, Talbot
respondents
Ashurst.
Murray
Curran,
Donald
Ronald Gro-
Kleist,
J.
J.
W.
Hugh
shong,
Miracle,
Lewis,
P.
John R.
Keefe,
Thomas
Piper, Roy
Peterson, J. P.
Robert P.
Tonkoff,
Theodore D.
Eberharter,
Frank
amici curiae.
Moceri, and
Two superior decisions are
us for
J.
before
Hill,
of certiorari. We deal with them in
review, each on writ
single
question:
opinion
each raises the
because
same
personal-
and to
extent a
Whether,
so,
if
when
what
statutory
injury plaintiff
held
have waived his
thereby
physician-patient privilege1
trial,
actual
en-
before
statute,
(4), reads:
1The
ECW 5.60.060
following persons shall not be examined as witnesses:
“The
surgeon
regular physician
not,
“(4)
shall
A
without
consent
ány
patient,
examined in a civil action as to
information
of his
attending
patient,
acquired
which was
to enable him
patient.”
prescribe
for the
or act
experts
discovery
titling
pretrial
to medical
as
defendant to
privilege?
otherwise covered
Phipps,
Anthony Appolito,
party-plaintiff
Admin-
one
(hereinafter
Anthony Appolito
re-
istrator, and
Sasser
injured
case),
Appolito
in a collision
ferred to as
was
in Benton
an automobile
between motor scooter and
following
peri-
County.
his rather
and,
He is a musician
patetic
profession,
doctors
some six different
was treated
in a
collision
total of
cities
the incident
four
between
year
roughly
settled
time,
later,
and the
when he
plaintiff placed himself under the continu-
There,
Seattle.
ing
physicians suggested by
care of
counsel.
two
Seattle
viewing
deposition
Appolito
of Mr.
counsel,
Defense
something
satisfactorily enlightening,
noted
less than
taking
depositions
on the
of his Seattle
grounds
only
procurable
essen-
that information
thus
right
intelligent
undisputed
to a
tial
exercise of their
physical
plaintiff,
defense
examination of the
under
*3
Appolito
quash
subpoenas
then RPPP 35.2Mr.
moved to
the
physicians, urging
duces
in-
tecum, issued to the
that the
County
sought
privileged.
Supe-
formation
The Benton
was
relying
explicitly
rior
dis-
motion,
Court denied the
on the
Independent
sent
our recent decision of Bond v.
Order of
(1966).
Appoli-
879,
We thus have for to the review Benton filing personal-injury effect that action constitutes a privilege; King waiver of the and a County ruling that it does not constitute such a waiver (though grounds urged other are also King County case). quoted statutory privilege,
We have heretofore 26,4 direct attention to now CR under which defend- seeking deposition ants were to take the injured expressly of in each case. It limits the scope privileged, matter, of.examination to pending is relevant to matter involved in the action. supra. 3See note Depositions Pending (Part Depositions V, 4Civil Rule Action
Discovery): (a) Depositions May Any party may When Be Taken. take the *4 testimony any including person, party, deposition upon of oral interrogatories purpose discovery examination or written for the purposes. or for use as or evidence action for both (b) Scope of Examination. Unless ordered the otherwise provided by 30(b) (d), deponent the be ex- Rule regarding any privileged, matter, is relevant amined not to which pending action, the in whether it relates matter the involved examining party claim or thé claim or defense of the or to the party, defense other .... decision), (a supra held we 5-to-4 case, In Bond the by itself, not, bringing personal-injury does action the of a privilege af- of the constitute a waiver forded our statute. testimony the that case that also held in
We of his pretrial deposition, and extent the nature physician- injuries, of the not constitute waiver does testimony response the patient is where subpoena pretrial circum- since, under such defendant’s being an adverse witness examined as is stances, the govern- subpoena compliance and rules of court with discovery. ing supra, adhering case, in the Bond we
In to our decision objects purposes and of liberal of the are not unmindful discovery benefits, as enumerated in as ours. rules such Practice, are: Moore’sFederal ascertaining great the truth It assistance 1. perjury. checking preventing . . . detecting exposing
2. It is an effective means of and defenses. claims false, fraudulent, sham simple, convenient, and in a 3. It makes available inexpensive way could facts otherwise often difficulty great proved, except some- have been at all. times not parties trial as 4. It advance educates thereby encour- defenses,
real value of their claims and aging out of court. settlements litigation, time disposal expedites saves 5. It many cases the docket of courts, and clears have otherwise would
settlements and dismissals which to be tried. prevents surprise safeguards against trial, at the 6. It tried, simplifies delays issues to be and narrows and thereby expediting the trial. preparation 26.02 trial of and the It facilitates both 7. ed). (2d Prac., [2], at Fed. ¶
cases. 4 Moore’s purposes of these in full accord with we are While instrumentalities make them effective and desire making case, relevant facts all the available *5 444
must recognize themselves, ex- the discovery plicit language, make their and unavailing procedures thereby their benefits with reference to privi- unavailable leged matters.
The rule of
embodied in
5.60.060(4)
RCW
privilege
reflects the
judgment
considered
one branch
our tri
partite-structured
government,
regarded
traditionally
constitutionally
leg
and
Such
separate,
independent
equal.
merit,
islative
even
judgments
require,
of judi
exercise
cial self-restraint of a very high order.5 It is our duty when
with a
confronted
valid act such as this to give effect to the
legislative
therein,
intent embodied
from
refraining
substi
matter,
tuting
judgment
be,
our
that may
whatever
that of
legislature.
is to
It
be noted that unlike the attorney-client
and
which have
priest-penitent
privilege,
common-law origin
broad in
are
their
scope,
privilege
is of
origin;
purely statutory
at
known
common
law,6 and is
limited
its
scope by
statutes which create
it.7
origin
privilege
generally attributed to the
generally
concurring
opinion
Finley,
J.,
5See
C.
Markham
Advertising
State,
405,
248,
espe
Co. Inc. v.
73 Wn.2d
439 P.2d
cially passage quoted
Tyson
from
&
Theatre
Brother—United
Ticket
Offices,
Banton,
(1927)
418,
(Holmes,
J.,
Inc. v.
446
273 U.S.
dissent
ing).
Haugland
Smythe,
161,
Our 1946 case of State ex rel.
v.
25 Wn.2d
168,
706,
approval
P.2d
169
445 by Lord announced rule, reaction to the common-law Kingston’s Case, All E.R. in the Duchess Mansfield (1776),8 Eng. Rep. and the lament [1775-1802] 623, 168 Eng. Rep. Rastall, of Mr. Justice Buller Wilson (1792), ex was not 1283, 1287 that the law of persons” “the information which tended to “medical they by attending professional acquire characters.” *6 legislature only
The not created the scope, acted seen, and its but limited we have equal clarity certainty designating areas example operative—for which it shall not see our be following compensation workmen’s act contains the which provision: hearings, proceedings In de- all actions or before the
partment appeals, or or the board of industrial insurance any any appeal physician before having be on board, from the may theretofore or claimant examined treated the required testify fully regarding to such examination testifying exempt or treatment, and shall not be from so (RCW physician patient. reason of the relation of 51.04.050) legislature physician-patient priv- Since the has created a ilege, where none existed at law, common has made its scope own limitations as to and as to where it shall applicable, any changes legisla- in it should be made ture. privileges
However, even constitutional
can (1967);
Silvers,
waived.
State v.
Wn.2d
P.2d 539
(1966),
State
Baxter,
68 Wn.2d
446- is a blanket his privilege by plaintiff, the defendant may then take the deposition or treating physician physicians.
Those who for a argue commencing blanket waiver action, trial, it for noting or at some other specific in the point on pretrial procedure proceed assumption that waiver is inevitable, so not at the time why particular select? they fallacy is not argument that such waiver
always for a make out personal-injury facie In prima addition, even case. where such waiver- producing testimony by personal-injury-plaintiff’s physi- cians seem to be essential to the establishment case, facie plaintiff’s prima he dismissal to dis- may prefer closure, or may choose to on the chance that he proceed might be able to make his case out without waiver—both alternatives his discretion. If one of these being within case, situations existed particular blanket waiver and, us result urged upon unnecessary would to the plaintiff, undesirable disclosure of his medical If history. *7 blanket waiver at some fixed moment in the pretrial proce- answer, must, dure is the ultimate it the reasons we indicated, have come from the created legislature which action, the Absent trial privilege. legislative the court should on a basis than proceed case-by-case rather having this court to fix a event attempt precise pretrial which, conditions, under all constitute proceedings would neither the implied waiver. commencement Certainly, the action nor the trial date the establishment of furnishes concluding every basis reason case that the has decided to his plaintiff-patient statutory waive privi- his on the stand. lege put treating physician that it does become agree ap
We would whenever waiver, decide in that the must favor of parent plaintiff delayed should not be until the trial itself. then that waiver should not have the unfair tactical advantage The plaintiff almost results in a con invariably of a trial waiver which and, the dismissal of the action and tinuance frequently, another trial. proceedings, stage the
Certainly, pretrial at some the going treat- plaintiff call his he is must decide whether ing physician defend- physicians, is, then the if he and, or deposition of the take ant is entitled it time to to know prepare physician to meet such or testimony. fed as the
Our civil bear the same numbers changes. adopted The eral rules, have with few which we operating rules, seem courts, federal under identical accelerating privi difficulty had have little waiver necessity lege a blan on a case-to-case basis without ket waiver. (N.D. Sears, Co.,
In Greene v. Roebuck & 40 F.R.D. 1966), decisively once con- moved it was Ohio the court privilege, plaintiff her vinced that the intended to waive issuing following order: developed On the record this court it before will matter of this action the deemed as to the
plaintiff privilege, ruling contemplates a of the waiver days receipt from unless five of this within plaintiff, writing, informs the is not intended and not occur. waiver will necessity of Thus when the seems clear to the readily plaintiff court, trial can be faced the mo- privi- he, not, ment of will he waive his decision—will lege? compelled, cases, In other has federal the trial court (to- delivery upon request, of a list witnesses gether addresses) on the with their be offered trial. This usually “depending good shown,” on cause is from 10 to 30 days presence treating date. before the trial physician regarded on list of witnesses evidencing his intent to waive sub- deposition. ject physician If the desires to *8 being prevent deposition scope, taken, or to limit its he coftvincing depo- burden of the trial court that has the good taken or to sition should show for such not cause limitation. why exercising courts, reason our can see no trial
We plaintiff’s discretion, should not treat broad inclu- same sion of his treating physician among his list of intended witnesses at trial as his indicating intent to his waive privi- lege. Such an accelerated apparent waiver could then ena- ble the defense to utilize the full range discov- pretrial ery procedures the treating named and same extent and to the same controls as would govern after at discovery trial.9
At the time the cases present were argued there was considerable discussion as to when an ultimate waiver aby plaintiff of the physician-patient privilege might im- plied.
If, as urged, our decision in the case, supra, Bond renders our existing rules for a determination of what inadequate evidences such an intention to waive the physician-patient privilege, and in rule is nec- consequence new procedural for essary that it should purpose, not be in an promulgated opinion such as this, but through the usual procedure have followed for the rules, our all adoption permitting interested parties to be heard.
At the oral argument
cases,
in the present
it
also
was
contended,
vigorously
some
assent,
measure of general
that early waiver of the privilege
a tactical
presents
advan-
tage
the defense when it is allowed to
depose
9Contrary
interpretation
placed
to the
have
some
on
decision in
Fuqua,
McUne
(1953),
42 Wn.2d
449 treating physicians establishing position on before its own question plaintiff’s through physi- state, of a a medical by cal of examination CR 35 trans- under followed report mittal of a full written that examination to the plaintiff. contention al- The was that if a defendant were depos- postpone lowed to the CR 35 examination until after ing plaintiff’s doctors, examination, had, would when merely plaintiff’s tend to be an meet a medical effort to producing independent theories rather than evaluation subject, of a condition. the well- On this see Long L. written article Jeremiah M. in Wash. Rev. 665 (Oct. 1964). paragraph has What been said serves to emphasize some the difficulties the court encoun- would promulgating ter in a rule a decision.
Returning immediately it is us, the issues before showing our view that the defendants did not amake Appolito permit either the or the case Ashurst sufficient say certainty injured plain the trial court to with that the ultimately physician- tiff in either case intended to waive his patient privilege. Nor do think the courtesies that thereby expectation extended Mr. Ashurst, securing speedy necessarily settlement, constitute a right waiver of his to insist that communications made diagnosis him doctors, to his to assist them treat privileged. ment, were Kang County Superior
The action of the Court approved Ashurst affirmed; case is action of County Superior Appolito the Benton in the Court case is disapproved, quash subpoenas with directions di- physicians rected to the in that case. nothing noted,
It should be however, that there is prevent deposing treating physician, if the examination nonprivileged limited to matters. There was no such limita- suggested requests tion in the defendants’ before now court. present holding imply may
Nor does our that there pretrial development time, be a or both either say cases, these when the trial can is clear it ultimately should waived; be that the waiver will plaintiffs can accelerated; and that the the trial court deposed limitations within such proper. seem prevailing parties will recover on each writ
costs. JJ., Neill, Hamilton,
Weaver, Rosellini, Hunter, *10 concur. result)—I (concurring re- in the concur in the
Hale, J. bringing holding majority opinion its of the sult injuries personal a not constitute waiver does action for an plain- guaranteed privilege patient-physician the (4) 5.60.060 states: tiff statute. RCW surgeon (4) regular physician not, shall without or A patient, in a civil action be examined consent of the patient, attending acquired information prescribe or act for him to to enable which was the patient .... straightforward go beyond however, the not,
I would anticipate conditions I not of the statute. would declaration statutory privilege deemed waived. will be the under which Independent Order Bond v. our decision in Thus, I think (1966), P.2d 351 sus- Foresters, 879, 421 69 Wn.2d the rule without embellish- and declares the tains Ac- supplies instant case. a ratio decidendi ment, beyond majority opinion goes cordingly, think I contemplating circumstances under of the occasion needs bringing implied from a be which waiver action. (dissenting)—I I dissent. would hold that J.
Finley, C. physician-patient privi- plaintiffs cases waived in both complaints. filing lege upon of their my position My forth in for this were set dissent reasons Independent Foresters, Order 69 Wn.2d Bond v. briefly, (1966). they 351, Summarized are 421 P.2d (1) question presented The is not whether the as follows: physician-patient privilege main- is desirable should privi- tained, is the but rather what circumstances under (2) legislative. lege judicial, question waived. This is although (3) policy underlying procedure, The our allowing promote privileged communications, seeks to (4) accessibility Our decisions to relevant information. Bond) (prior support act of seem to the view that the filing complaint physician-patient privilege in waives personal injuries injury cases insofar as information about litigation (5) To be consonant is concerned. policy underlying procedure, physician- our rules of patient privilege should deemed at the earliest waived appropriate suggested time; be, seem to this would prior complaint decisions, time when filed. majority opinion my case is, view, in the instant improvement majority supra. opinion Bond, over the
Many, plaintiffs personal injury all, if not cases eventu- ally physician-patient privilege waive their as to relevant injuries. By apparently endorsing the federal decisional majority rule10of waiver, accelerated case instant *11 recognized encouraged employment has this fact and has of discovery procedures once it is clear that of waiver physician-patient privilege ultimately will occur. my judgment,
In however, the accelerated-waiver rule is imposing specific less than a desirable rule waiver at some point specific in time. The rule, accelerated-waiver unlike a point require type case-by-case rule, waiver of will a deci- sion-making promote at the trial court level which will appellate litigation. personal injury may Parties to actions easily They ascertain when waiver has in fact occurred. may proceed litigation they of be unsure how to if with again wish to avoid waiver. The rule, accelerated-waiver specific point rule, unlike waiver fails to fulfill one of the principal functions of decisional rule—settlement of Sears, Co., (N.D. Roebuck & 10Greene 1966); 14 40 F.R.D. Ohio Awtry States, v. United (S.D.N.Y. 1961); Mariner v. 27 399 F.R.D. Dredge Co., Lakes & Supp. (N.D. 1962). Great Dock 202 F. 430 Ohio particular controversies that the results future issues so predicted. short, In the accelerated-waiver can better specific point-waiver rule, create rule, in to a contrast many as it resolves. difficulties imposing Bond, a dissent in rule As stated filing upon time—specifically, particular point at a justifiable protecting complaint—is in- “consistent with plaintiff, policy progressive our with the terests concept procedure, traditional litigation truth-finding process.” as a 69 Wn.2d at adopted my judgment, In should be 356. such rule P.2d at Accordingly, affirm order entered court. I would Appolito and reverse the order entered in case Ashurst case. J., concurs with C. J. Finley,
McGovern,