KANE, J. I dissent. The majority’s reliance on Britt v. Superior Court (1978) 20 Cal.3d 844 [143 Cal.Rptr. 695, 574 P.2d 766] is not misplaced; it is, however, a manifestation of the old adage “bad cases make bad law.” And while a good pragmatic argument can be made to distinguish the instant case from Britt on the ground that Britt involves a mixed bag of [558]personal injury, mental distress, and property damage claims by a multitude of claimants, the real vice of Britt is that it is contrary to clear legislative mandate and sound public policy. In its ultimate application, moreover, Britt is a vehicle for the perpetration of injustice and inequity upon those persons and entities who are sued in personal injury actions.
Britt has established a double standard of the right to discoveiy—one for plaintiffs and a more limited one for defendants. In reaching this patently discriminatory result, the majority in Britt has not seen fit to explain how it got there except by the exercise of judicial fiat. Or, as Justice Richardson so poignantly expressed it in his dissent, “Initially, I note that the majority, inexplicably, has either forgotten or has chosen to ignore what I had always considered to be our most definitive expression in the area of civil discoveiy. In 1961 through the careful analysis of Justice Peters, in Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 [15 Cal.Rptr. 90, 364 P.2d 266], we examined in veiy considerable depth the Discovery Act of 1957 (Code Civ. Proc., § 2016 et seq.). Under 79 headnotes we expressed the expansive views of this court on the legislative intent behind the act, compared new and old law, considered the nature of the trial court’s discretion, conducted a careful procedural review and scrutinized many matters related to discovery generally.
“In the 20 years since adoption of the act Greyhound has been considered by bench and bar as a prime authority in the interpretation of the act and the principles and policies on discovery matters. In considering the trial court’s function we noted in relevant part: ‘It is apparent, however, that each exercise of discretion will occur under a differing set of facts, and that each case must, of necessity, be decided in light of those particular facts. But it is possible to lay down certain general rules based upon the nature and purpose of the discoveiy statutes which can be used in determining the proper exercise of discretion in all discoveiy cases. To constitute a proper exercise of discretion, the factual determination of the trial court should clearly and unequivocally be based upon the following legal concepts: [H] 1. The legislative purposes [to give greater assistance to the parties in ascertaining the truth and checking and preventing perjury; provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses; make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; expedite litigation; simplify and narrow the issues; and expedite and facilitate both preparation and trial] are not to be subverted under the guise of the exercise of discretion; [11] 2. Those purposes are to be given effect rather [559]than thwarted, to the end that discovery is encouraged', . . .’ (Pp. 382-383, italics added.) [A portion of foregoing italics added.]
“Faithful to the foregoing overriding principles of Greyhound, we have consistently applied a liberal construction to the provisions of the act, permitting discovery and, while accepting the existence of privileges, have followed the strictures of Code of Civil Procedure section 2016, subdivision (b), wherein the Legislature has authorized discovery by deposition ‘. . . if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.’ On the issue of relevance, we were led to conclude in Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161 [84 Cal.Rptr. 718, 465 P.2d 854], that ‘. . . the relevance of the subject matter standard must be reasonably applied; in accordance with the liberal policies underlying the discovery procedures, doubts as to relevance should generally be resolved in favor of permitting discovery. ’ (P. 173, italics added.)” (20 Cal.3d 844, 866-868.)
The majority in Britt fails to appreciate the distinction between discovery and admissibility when it relies on its own gratuitous dictum in In re Lifschutz (1970) 2 Cal.3d 415 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1], that unlimited medical discovery “ ‘might effectively deter many . . . patients from instituting [legitimate lawsuits] out of fear of opening up all past communications to discovery,’ . . . that such a ‘result would clearly be an intolerable and overbroad intrusion into the patient’s privacy, not sufficiently limited to the legitimate state interest embodied in the provision, and would create opportunities for harassment and blackmail.’ (2 Cal.3d at p. 435.)” (Britt v. Superior Court, supra, 20 Cal.3d at p. 863.)
The court cites no authority—textual or otherwise—to support such an assertion. Any lawyer or judge who has any first-hand familiarity with personal injury litigation knows that there is absolutely no factual basis for that statement. Literally tons of medical records of plaintiffs have been discovered by defense lawyers in personal injury cases since adoption of the Discovery Act in 1957. Yet, there is not one case or incident mentioned in Lifschutz or Britt to suggest that a single potential claimant anywhere at any time has been deterred from pursuing a legitimate lawsuit because of the possible disclosure of nonrelevant medical histories.1
[560]If the past medical history is not relevant, it will not be admitted at trial. Indeed, the defense lawyer who has “discovered” the medical records is interested in finding those which are relevant and discarding those which are not.
On the other hand, Britt and Lifschutz have created a legal vehicle which clearly provides a concrete basis for “harassment and blackmail” of defendants! How does this come about? It is really quite simple.
First of all, to see the picture clearly we must clear the air by wiping away that intangible but seemingly omnipresent bucket of gold—“insurance.” Any analysis of the fairness of our judicial procedures should be based upon the concept of equal treatment. Therefore, as applied to the case at bench, we should, in fairness, not assume that the real party in interest (defendant below) is either insured or not insured. All of that is irrelevant. We should simply assume that Dr. Hallendorf is suing Mr. Pflibsen for damages which Dr. Hallendorf claims were caused through the fault of Mr. Pflibsen.
Certainly, it is fair that the plaintiff be given the forum to make his claim. But it is not fair that the plaintiff be left as the sole judge of his own credibility. He may very well testify that his claim is limited to a precise part of his anatomy which he also declares has never been injured or treated before. Does that mean that the defendant, his attorney, and later the jury must accept plaintiff’s word without question?2 According to the Britt majority, relying on its own opinion in Lifschutz, the answer is yes. “ \\T\\he scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.’ (Final italics added . . .).” (P. 864.)
If plaintiff is in fact telling the truth, his prior medical records will confirm him. No harm whatever has been done; in fact, the support of his credibility will enhance his settlement possibilities. On the other hand, if [561]the records disclose relevant, impeaching evidence, can anyone deny that justice has been done? Excluding the plaintiff, everyone involved including plaintiff’s own lawyer will benefit from ascertaining.the true facts before trial.
By the promulgation of its double standard in Britt, the court has also placed an additional costly and unnecessary burden on litigants and the trial courts. What had heretofore worked as a fair and efficient system of discovery has been converted into a highly disputive procedure, requiring tedious nit-picking by counsel and the court in the course of resolving objections to depositions and interrogatories and motions to quash discovery subpoenas. Coupled with the unsavory result of truth suppression, the result in Britt—now carried over to the case at bench—should be reexamined and quickly revoked.
In fact, it is a matter of unassailable common knowledge that long before either Lifschutz or Britt was decided, the court filings in personal injury cases increased year after year after year.
For example, assume plaintiff testifies that his only claimed injury involves the low back and that he had never been injured or treated for low back symptoms before the accident in question. Assume further that plaintiff has, however, been treated by a number of doctors in his life for “other things,” even perhaps the mid-back, upper back, neck, etc. Under Britt, the defendant is foreclosed from testing the credibility of the plaintiff and is exposed to the very real possibility of incurring a judgment which includes disability or pain and suffering which is legally and morally attributable to an undisclosed prior injury or condition. The search for truth in any lawsuit must be carried out on a two-way street. In the context of personal injury litigation, unfortunately, Britt and Lifschutz have erected “One Way Only” signs which for all practical purposes keep defendants off the road.