RACHEL GEARY PETITIONER v. ORIGINAL ACTION HONORABLE EDWIN A. SCHROERING, JUDGE JEFFERSON CIRCUIT COURT, DIVISION 12 AND SAMUEL GRANT WELDING & THERAPY SERVICES, INC. REAL PARTIES IN INTEREST
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RENDERED:
November 6, 1998; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002089-OA
RACHEL GEARY
v.
PETITIONER
ORIGINAL ACTION
FROM JEFFERSON CIRCUIT COURT
HONORABLE EDWIN A. SCHROERING, JUDGE
JEFFERSON CIRCUIT COURT, DIVISION 12
RESPONDENT
AND
SAMUEL GRANT
WELDING & THERAPY SERVICES, INC.
REAL PARTIES IN INTEREST
OPINION AND ORDER
GRANTING CR 76.36 RELIEF
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF, AND MILLER, JUDGES.
KNOPF, JUDGE:
The trial court ordered the plaintiff, Rachel
Geary, to sign a blank medical authorization submitted by the
defendants, Samuel Grant and Welding & Therapy Services, Inc.
Geary petitions this Court for a writ of prohibition.
Upon
review of the petition, response, the trial court order as well
as the Civil Rules of Procedure and case law, this Court grants
the writ to prohibit the enforcement of the order which compels
Geary to sign a medical authorization permitting the
“unrestricted release” of all her medical information.
Geary filed a complaint against Samuel Grant and
Welding & Therapy Services, Inc.
Her complaint sought damages
for injuries she suffered as a result of an automobile accident.
Although parts of her past medical history are relevant, she
contends that allowing a fishing expedition into her medical
history will result in the release of embarrassing and completely
irrelevant information.
Thus, in order to protect her privacy
interest, Geary maintains that Grant and Welding should obtain
pertinent medical information by deposing the medical records
custodian.
A deposition will allow Geary’s counsel to seek a
protective order or an in camera review of private and
confidential information that is irrelevant to her claim.
In their response, Grant and Welding contend that the
trial court acted within its jurisdiction because the information
they seek is material and relevant.
They rely on Christoff v.
Downing, Ky., 390 S.W.2d 153 (1965), which recognizes that a
plaintiff’s medical history is material to the defense of a
personal injury action.
Additionally, they argue that no
reasonable means exist for them to obtain out-of-state medical
records.
The extraordinary relief of a writ of prohibition is
justified if the trial court is proceeding erroneously and
irreparable injury will result for which there is no adequate
remedy by appeal.
Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).
The Kentucky Rules of Civil Procedure provide the means
by which parties can obtain information, including testimony and
documents, of a nonparty witness.
The Civil Rules provide a fair
means of obtaining discovery by insuring that every method
operates within the adversarial nature of our justice system.
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Every method of obtaining information within our Civil Rules
provides that notice should be given to the other parties and
that the other parties have the right to be present and protect
their interests.
Specifically, the Civil Rules provide that to
obtain documents from a nonparty, one must serve a subpoena along
with a notice to take a deposition under CR 30.01, 30.02, 45.01
and 45.02.
The Court in Munroe v. Kentucky Bar Association, Ky.,
927 S.W.2d 839 (1996), held that it was improper to use an ex
parte subpoena to obtain information.
The subpoena must be used
in conjunction with a notice to take a deposition or hearing.
CR
45.01 states that a subpoena shall only be used for a deposition,
hearing or trial.
The requirement of a deposition or hearing
invokes the necessary notice to opposing counsel and the right to
be present to protect his or her interests.
In this case, an executed medical authorization would
act like an ex parte subpoena.
It would allow Grant and Welding
to obtain medical information without any notice to Geary and
without any means for Geary to protect her legitimate privacy
interests.
To compel execution of this medical authorization
would allow Grant and Welding to circumvent the Rules of Civil
Procedure and permit discovery without any adversarial
safeguards.
In Christoff
v. Downing, supra, the Court authorized
the taking of depositions in order to obtain the medical records
of the Veterans Administration.
The execution of a medical
authorization had to be accomplished in order to satisfy a
requirement of the Veterans Administration to allow a deposition.
-3-
However, the medical authorization in Christoff was limited to
“permitting and consenting to taking the deposition of a
representative of the Veterans Administration.”
Id. at 153.
The
Court in Christoff did not compel an authorization that would
allow the defendant the right to an unsupervised and unfettered
examination of the plaintiff’s private and confidential medical
information.
As the Court in Hammonds v. Aetna Casualty & Surety
Company, 2443 F. Supp. 793, 801 (N.D. Ohio 1965) explained:
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 consultation with his doctor - even
that which is embarrassing, disgraceful, or
incriminating. To promote full disclosure,
the medical profession extends the promise of
secrecy. . . .
The Court in Humana, Inc. v. Fairchild, Ky. App., 603
S.W.2d 918 (1980), recognized that there must be restrictions in
discovery proceedings to protect individuals from an invasion of
private information which is also irrelevant to the claim.
These
restrictions and protections cannot be obtained unless discovery
is adversarial with notice and a right to be present.
Unless the parties otherwise agree, our Civil Rules
provide the means by which Grant and Welding can obtain Geary’s
medical information.
The Civil Rules provide for depositions for
all nonparty witnesses such as medical record custodians,
doctors, nurses, and other care givers.
The Civil Rules also
provide for depositions to be taken out of state.
CR 28.02.
cases where witnesses do not reside in Kentucky, subpoenas are
In
-4-
issued via letters rogatory in order to take the depositions of
those witnesses.
See generally, A Practical Guide To Interstate
Deposition Subpoenas, Ky. Bench & Bar 8, Vol. 58, No. 2, (Spring
1994).
It is not an undue hardship but merely the means of
taking discovery that is fundamentally fair to both sides.
We believe that the Civil Rules allow for the discovery
of Geary’s medical information by the issuance of subpoenas and
taking depositions.
Unlike subpoenas and depositions, compelling
execution of the medical authorization does not maintain Geary’s
right of notice and right to be present.
Thus, the trial court
acted erroneously and irreparable injury will result for which
there is no adequate remedy by appeal.
As the Court in Bender v. Eaton, supra, explained:
Once the information is furnished it cannot
be recalled. . . . The injury suffered by
petitioners, assuming their adversaries have
no right to this disclosure under the Civil
Rules, will be complete upon compliance with
the order and such injury could not
thereafter be rectified in subsequent
proceedings in the case. Petitioners have no
other adequate remedy.
Bender v. Eaton at 802.
For these reasons, the Court ORDERS the petition for a
writ of prohibition be GRANTED.
Thus, the respondent trial court
is hereby PROHIBITED from enforcing the order entered August 5,
1998, compelling Geary to sign the medical authorization.
ALL CONCUR.
ENTERED:
November 6, 1998
/s/ Wm. L. Knopf
JUDGE, COURT OF APPEALS
ATTORNEY FOR PETITIONER:
ATTORNEY FOR REAL PARTY IN
INTEREST:
-5-
Alan S. Rubin
Louisville, Kentucky
Emily A. Hoffman
Charles W. Miller
O’Bryan, Brown & Toner
Louisville, Kentucky
-6-
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