Johnson v. District Court of Oklahoma County

Johnson v. District Court of Oklahoma County
1987 OK 47
738 P.2d 151
58 OBJ 1574
Case Number: 68588
Decided: 06/02/1987
Supreme Court of Oklahoma

 
COISE Y. JOHNSON, AS PERSONAL REPRESENTATIVE OF ISAAC G. JOHNSON, DECEASED,
PETITIONER,
v.
DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA, RESPONDENT.

Application to Assume Original Jurisdiction and Petition for Writ of Prohibition.

¶0 Petitioner, the plaintiff in a medical malpractice action, seeks extraordinary relief from this Court to prevent the enforcement of a trial court order compelling discovery by ex parte interview of petitioner's physicians by defendants in the case. Petitioner alleges that the discovery order is beyond the authority of respondent trial court.

Original Jurisdiction Assumed; Writ of Prohibition Issued.

Rex K. Travis, Oklahoma City, for petitioner.

Short, Barnes, Wiggins, Margo & Adler by Robert E. Margo and Randall L. Sewell, Oklahoma City, for respondent real parties in interest.

LAVENDER, Justice:

[738 P.2d 152]

¶1 Petitioner, Coise Y. Johnson, brought a medical malpractice action against respondents, real parties in interest, Michael Seikel, M.D. and Fenton M. Sanger, M.D., alleging that the malpractice of these defendants had caused the death of petitioner's son. The defendant physicians presented a motion to respondent district court requesting a finding that the physician/patient privilege concerning any communication made to any health care provider or physician concerning the matter in controversy had been waived pursuant to

¶2 Assumption of original jurisdiction and relief by writ of prohibition is appropriate to prevent the excessive exercise of discretion by a trial court in ordering pretrial discovery.

¶3 We agree with the position urged by petitioner that the order for discovery by ex parte communication was beyond the discretionary powers of the trial court. Title

Sections 1 through 15 of this act shall be known and may be cited as the Oklahoma Discovery Code. The Discovery Code shall govern the procedure for discovery in all suits of a civil nature in all courts in this state. (emphasis added)

Section 3202, provides:

The Discovery Code shall be liberally constructed to provide the just, speedy and inexpensive determination of every action. (emphasis added)

Section 3203(A), provides:

DISCOVERY METHODS. Parties may obtain discovery by one or more of [738 P.2d 153] the following methods: Depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under this section, the frequency of use of these methods is not limited.

The Oklahoma Discovery Code does not authorize ex parte communications as a proper form of discovery.

¶4 Respondent physicians argue that

¶5 The issue before us, however, is not the scope of discovery authorized by section 19(B) but rather the methods by which discovery may be carried on. Respondent physicians have argued that section 19(B), being a special statute containing no limitation on discovery methods, authorizes ex parte communication as a legitimate discovery tool. Such a finding, however, would clearly conflict with the expressed legislative intent that the Oklahoma Discovery Code shall govern discovery procedure in all suits of a civil nature. It would also result in a construction of section 19(B) which would be contrary to the rule that a construction harmonizing apparent conflicts is preferable where such construction is possible.

¶6 ORIGINAL JURISDICTION ASSUMED; WRIT OF PROHIBITION ISSUED.

¶7 DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, SIMMS and WILSON, JJ., concur.

Footnotes:

1 This section provides, in pertinent part:

In cases involving a claim for personal injury or death against any practitioner of the healing arts or a licensed hospital, arising out of patient care, where any person has placed his physical or mental condition in issue by the commencement of any action, proceeding or suit for damages, or where any person has placed in issue the physical or mental condition of any other person or deceased person by or through whom such person rightfully claims, he shall be deemed to waive any privilege granted by law concerning any communication made to a physician or health care provider with reference to any physical or mental condition or any knowledge obtained by such physician or health care provider by personal examination of any such patient; provided that, before any such communication, medical or hospital record or testimony is admitted in evidence in any proceeding it must be material and relevant to an issue therein, according to existing rules of evidence.

2 Cox v. Theus, 569 P.2d 447 (Okla. 1977).

3 AMF Tubescope Co. v. Hatchel, 547 P.2d 374 (Okla. 1976).

4 See Eason Oil Co. v. Corp. Comm., 535 P.2d 283 (Okla. 1975).

OPALA, J., with whom KAUGER, J. joins concurring.

SUMMERS, J., concurring specially:

I write to note that I detect nothing in this opinion nor in the statute to forbid a party or his attorney from proceeding ex parte to inquire of a witness for the opposing party, nor of the witness for voluntarily providing the information sought if that is his wish.

OPALA, J., with whom KAUGER, Justice, joins, concurring.

¶1 Although I concur generally in today's pronouncement, I write separately to add [738 P.2d 154] my own analytical basis for the construction to be placed on the provisions of

¶2 The provisions of

¶3 I hence concur in the court's refusal to single out medical and hospital malpractice suits for some special discovery rules that are not available in other death or personal injury litigation. The challenged "discovery" order condemned by today's pronouncement is impermissibly overbroad because it compels unnamed health providers to make unbounded ex parte disclosures without any court supervision.

Footnotes:

1 The pertinent terms of 76 O.S.Supp. 1985 § 19 (B) provide:

"In cases involving a claim for personal injury or death against any practitioner of the healing arts or a licensed hospital, arising out of patient care, where any person has placed his physical or mental condition in issue by the commencement of any action, proceeding or suit for damages, or where any person has placed in issue the physical or mental condition of any other person or deceased person by or through whom such person rightfully claims, he shall be deemed to waive any privilege granted by law concerning any communication made to a physician or health care provider with reference to any physical or mental condition or any knowledge obtained by such physician or health care provider by personal examination of any such patient; provided that, before any such communication, medical or hospital record or testimony is admitted in evidence in any proceeding it must be material and relevant to an issue therein, according to existing rules of evidence." [Emphasis mine.]

2 The terms of 12 O.S. 1981 § 2503 (D)(3) provide:

"The privilege under this Code as to a communication relevant to the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon that condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense, is qualified to the extent that an adverse party in said proceeding may obtain relevant information regarding said condition by statutory discovery." [Emphasis mine.]

3 The pertinent terms of Art. 5, § 46 , Okl. Const., provide:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * *

Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts. . . . * * *"

[Emphasis mine.]