observing that “the ethical rules of the medical profession . . . prohibit disclosure of confidential information in non-judicial settings” and that the “Hippocratic Oath imposes on physicians a duty to maintain confidences acquired in their professional capacity”
How later courts described this case
- observing that “the ethical rules of the medical profession . . . prohibit disclosure of confidential information in non-judicial settings” and that the “Hippocratic Oath imposes on physicians a duty to maintain confidences acquired in their professional capacity”
- recognizing "that most cases will not lend themselves to such simple resolution” as to the extent of the waiver of the privilege
- "[M]edical information which is unrelated to the condition in issue and irrelevant to the cause remains privileged and therefore protected from discovery."
- by bringing personal- injury claim, plaintiff waived physician-patient privilege as to matters causally and historically related to the condition at issue and directly medically relevant to claim, counterclaim, or defense
Written by the judges who cited it.
The opinion
DICKSON, Justice,
concurring and dissenting.
I concur with the majority except as to its affirmance of the trial court’s order that Canfield pay attorney’s fees to the San-docks’ counsel as a sanction in the underlying discovery dispute.
In the use of non-party requests for production directed to the Sandoeks' treating physicians pursuant to Ind. Trial Rule 34(C), Canfield’s methods were consistent with prevailing practice and substantially justified. See, e.g., T. Yoder, Integration of Trial Preparation and Discovery: The Defendant’s Viewpoint, in Trial Preparation and Discovery: Controlling Time and Costs at II — 4, Indiana Continuing Legal Education Forum (1982); J. Petersen, Processing the Routine Negligence Case from Receipt to Settlement, in Strategies for Representing the Routine Negligence Case at 11-59 and 11-70, Indiana Continuing Legal Education Forum (1984); G. Montgomery, Paper Discovery of Medical Records and Their Effective Use at Trial, in Winning Your Case Through Effective Pre-trial Discovery at 8-12, 35-40, Indiana Continuing Legal Education Forum (1990).
That Canfield’s discovery attempt was not abusive is evidenced in the proceedings below. While granting the Sandoeks’ motion for protective order, the trial court expressed its belief that the issue presented a question of first impression under Indiana law, thus admitting that Canfield’s conduct was not in contravention of existing rules or precedent. Significantly, the opinion of the Court of Appeals unanimously concluded that the trial court abused its discretion in granting the protective order and implicitly approved of Canfield’s medical discovery technique.
It is only by reason of today’s decision of this Court that Canfield’s discovery method has been rendered too extensive — and then only because of the successful intervention of the Sandoeks’ motion for protective order. Canfield was certainly entitled to present legal argument in opposition to the motion for protective order, even if ultimately unsuccessful. Even under the procedures endorsed by the majority opinion, Canfield’s non-party request for production requesting all prior medical records cannot be viewed as excessive since the burden is placed upon the plaintiff to assert his right to medical confidentiality by means of a protective order. The stated expectation of the majority is that documents will likely be requested which are “irrelevant but innocuous” and that invocation of the privilege of confidentiality will be rare.
In view of the widespread acceptance and use of the discovery procedure utilized by Canfield, the trial court’s implied concession that the established law was not adverse to Canfield’s position, the unanimous approval of the procedure by the decision of the Court of Appeals, and the conformity with the procedure actually recommended by this Court today, Canfield’s attempted discovery was substantially justified thereby precluding an award of expenses including attorney’s fees under Ind. Trial Rules 26(C) and 37(A)(4). I would reverse the trial court’s punitive imposition of attorney fees.