This is an original action in prohibition.
Dr. Terry E. Lilly, Jr., filed a suit in the Circuit Court of Jackson County, Missouri, against Drs. Benoit, Williams and Hoadley. He contends in Count I of his petition that Benoit, Williams and Hoadley conspired to reduce his privileges on the staff of Re
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search Hospital and Medical Center. See Cowan v. Gibson, Mo.Sup.,
Dr. Lilly, in the course of the proceeding in the trial court, filed a motion seeking an order directing the issuancе of a subpoena duces tecum to the hospital requiring production of “all official hospital charts, including x-ray pictures, of all patients admitted to Research Hospital in the years 1963, 1964, and 1965 under the care of every member of the staff of Research with privileges to practice General Surgery during said years.”
In response to this motion, respondent Judge Randall proposes to enter an order compelling, under designаted conditions, the production of records of fifty-five doctors. This proposed order reads, in part, as follows:
“It is hereby ordered by the court that the said motions of each of the defendants requesting the court to refuse to issue a subpoena duces tecum are hereby overruled and the motion of the plaintiff for issuance of a subpoena duces tecum and the motions of defendants and of Research Hospital for protective orders are sustained as herein stated. The Court hereby authorizes, orders and directs Carol Marvin and/or Carol G. Colston, Notaries Public, or any notary public to issue and serve or cause to be served a subpoena duces tecum in the above cause directed to the Medical Records Librarian of Research Hospital, Meyer Boulevard and Prospect Avenue, Kansas City, Missouri, requiring said witness to producе subject to the conditions specified herein at the taking of her deposition in this case on behalf of plaintiff Terry E. Lilly, Jr., on the - day of-, 1967:
“All records of Research Hospital of patients of the defendants compiled during the year 1964 and all records of Research Hospital of patients compiled during the year 1964 wherein the patients were patients of the following designated members of the staff of Research Hospital:
[Naming fifty-five doctors] provided, however, that production of said patient charts at said deposition shall be subject to the following conditions and limitations:
“1. Before said Hospital shall be required to disclose or produce for inspection by counsel any of the said patient charts the plaintiff shall designate to the Medical Records librarian by number of chart and name of attending physician from all of said patient charts such of thеm as he desires to have produced at the deposition and identified and copied.
“2. Said records shall be made available to plaintiff at reasonable times at Research Hospital and in reasonable quantities of records so as not to impose hardship on the clerical forces of Research Hospital or upon plaintiff.
“3. It is the intention of the court that plaintiff shall not designate for copying such a large number of records as shall impose hardship on the facilities of Research Hospital. Plaintiff therefore is directed to submit to the court his written designation of the patient records by number of the chart and by name оf the doctor admitting the patient in each case. If the court determines that the number of records requested to be copied is reasonable as to quantity then the court will direct that said records be coрied.
“4. Notice of such selections for copying as ordered by the court shall thereupon be given to the Medical Records Librarian who shall thereafter and prior to the deposition and prior to coрying said records delete or mask over the name and address of the patient together with any other information which identifies or discloses the *109 identity of the patient involved in each such chart thereby preventing disclоsure of such patients’ name and identity.
“5. The Medical Records Librarian shall produce, as specified in the subpoena, the selected patient charts, with patient identification deleted, at the Medical Records Room of Research Hospital at - o’clock P.M., on-.-, 1967, and her deposition shall then be taken, thereafter to be continued from day to day without further order, until completed.”
Relators Benoit, Williams, and Hoаdley applied for prohibition and we ordered the issuance of our preliminary rule. Briefs of the parties and amicus curiae briefs of the hospital and of thirty-one doctors have been filed. We conclude thаt the preliminary rule should be made absolute because the proposed order of the trial court would cause a violation of the physician-patient privilege.
The physician-patient privilege is provided for in § 491.060, RSMo 1959, V.A. M.S., which reads in part as follows:
“The following persons shall be incompetent to testify:
* * * * * *
“(5) A physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.”
We recognize that application to hospital records of the law involving the physician-patient privilege is troublesome. Hospital insurance, with its attendant waiver forms, is common. Hospital records are seen and copied by staff members and employees. The element of strict secrecy cannоt be present under these circumstances. However, the statutory privilege has been applied to hospital records in Missouri and we decline to change the well-established rule stated in Smart v. Kansas City,
Plaintiff Lilly contends that the order of the trial court protects the physician-patient privilege because the Medical Records Librarian would “delete or mask over the name and address of the patient together with any other information which identifies or discloses the identity of the patient involved in each such chart thereby preventing a disclosure of such patient’s name and identity.”
Plaintiff Lilly cites Hyman v. Jewish Chronic Disease Hospital,
These cases do not assist our disposition of this case. The order here allows plaintiff Lilly to examine the records, unmasked, so that he may designate those he desires produced and copied. It permits plaintiff Lilly to “discover” privileged matter without providing adequate safeguards. This is not permissible. S.Ct. Rule 57.01(b), V.A.M.R.
The purpose of § 491.060, supra, is the same as that expressed by the New York Court of Appeals when it said that its comparable statute is intended “to proteсt those who are required to consult physicians from the disclosure of secrets imparted to them; to protect the relationship of patient and physician and to prevent physicians from disclosing information which might result in humiliation, embarrassment or disgrace to patients. * * *” Steinberg v. New York Life Ins. Co.,
In Green v. Terminal R. Ass’n of St. Louis,
“Though in derogation of the common law, courts have not applied the rule of strict construction sometimes applied to statutes of that character. To the contrary, the right doctrine seems to be that the policy of the statute is an elevated one. It was intended to invite confidence between patient and physician and to prevent a breach of such confidence, and should be so construed as to further its life and purpose. It is obvious the languagе of the statute is of such sort that its interpretation and application are troublesome. But, because the task is difficult, shall it be made easy by ignoring it? Or by applying the statute automatically to every case and all infоrmation? On the one hand, it might be so construed as to fritter away the provisions of the law. On the other hand, it might be so literally construed as to work great mischief in the administration of justice. The ultimate object of every judicial inquiry is to get at the truth. Therefore no rule of law standing in the way of getting at the truth should be loosely or mehanically applied. The application of such law must be with discrimination, so that it may have the legislative effect intended for it, and yet the investigation of truth be not unnecessarily thwarted.”
We recognize that the “investigation of truth” must not be “unnecessarily thwarted” in this case, and that “ ‘since direct evidence is ordinarily in the possession and control оf the alleged conspirators and seldom can be obtained, a conspiracy usually is susceptible of no other proof than that of circumstantial evidence * * * ” State ex rel. Prudential Ins. Co. of America v. Bland,
We do not rule the other issues raised by the parties. This is prohibition and on the record befоre us we deem it proper to decide only the determinative issue. Respondent is directed to take no further action inconsistent with the views expressed herein.
The preliminary rule in prohibition should be made absolute. It is so ordered.