Lola Mae Durst v. Hill Country Memorial Hospital and Kathy Parsons--Appeal from 216th Judicial District Court of Gillespie County

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CONCURRING OPINION
No. 04-00-00540-CV
Lola Mae DURST and Clarence Durst,
Appellants
v.
HILL COUNTRY MEMORIAL HOSPITAL,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 8323
Honorable Stephen Ables, Judge Presiding

Opinion by: Alma L. L pez, Justice

Concurring opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: December 19, 2001

I concur with the majority opinion in all respects save the majority's broad conclusion that ex parte contact between a patient's treating physician and opposing counsel is not prohibited. Although I agree we should affirm the trial court's judgment, I cannot agree that any form of ex parte communication between a patient's treating physician and opposing counsel should be permitted. I fear that our resolution of the issue in this case brings us one step closer to the complete abrogation of the physician-patient privilege whenever a patient sues a health care provider or presents a claim in which the patient is attempting to recover damages for a physical or mental condition.

This court determined in Rios v. Texas Dep't of Mental Health & Mental Retardation that the ex parte communication that transpired in that case was not improper. See 58 S.W.3d 167 (Tex. App.--San Antonio 2001, no pet.). The majority relies on Rios to determine that the ex parte communication here is also permissible. However, the scenario before us is quite different. In Rios, after notice to the parties, defendant's counsel deposed the plaintiff's treating physician. Id. at 169. At the time, the plaintiffs were pro se and did not attend the deposition. After the plaintiffs engaged counsel, the trial court ordered that the treating physician be redeposed before trial, and the jury viewed both video-taped depositions. Id. Here, the ex parte communication did not occur as part of formal discovery. There was no notice, no deposition, and no opportunity to participate.

Moreover, the decision in Rios does not address the essence of the Texas Supreme Court's holding in Mutter v. Wood, 744 S.W.2d 600 (Tex. 1988). Mutter concerned a mandamus proceeding arising from a medical malpractice action. Id. The trial judge ordered the Mutters to sign an authorization permitting the defendant-hospital's attorney to discuss the medical care and treatment of their deceased son with the treating physicians and health care providers. Id. Although the authorization did not require that the physicians talk with the hospital's attorney, it completely waived the Mutters' physician-patient privilege. Id. The court determined that because the disclosures attempted were so broad as to encompass medical information that was not relevant to the claims at issue, the blanket authorization the Mutters were ordered to sign was impermissible. Id. at 601. This court acknowledged the holding in Mutter but, because the conduct complained of in Rios did not involve a blanket authorization form, concluded the plaintiff's reliance on Mutter was misplaced. See Rios, 58 S.W.3d at 169-70.

The language in Mutter suggests that the court was concerned not only with too broad an authorization, but also with the scope of the patient-physician privilege. The court noted that such a broad consent provided "no reasonable method to allow the [plaintiffs] to preserve whatever claims of privilege they might have because it would effectively allow defendant's counsel to question the physicians outside the presence of plaintiff's counsel. Such an authorization fails to properly balance the competing interests of the parties in the underlying case." Mutter, 744 S.W.2d at 600 (emphasis added). Our holding today permits precisely what the court in Mutter sought to avoid--allowing defense counsel to question a physician outside the presence of plaintiff's counsel, thus failing to properly balance the competing interests of the parties. Under this ruling, the defense counsel, and not the court, determines what is relevant to the litigation.

The remedy the appellants seek in this case is to strike the testimony of the four treating physicians. I agree with the majority that such a remedy is not warranted because the Dursts have not demonstrated any harm arising from the ex parte communication. Accordingly, I concur in the judgment.

Catherine Stone, Justice

PUBLISH