Hale v. Superior Court

California Court of Appeal Sep 16, 1994 No. D021574Published

Before: Work

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Holding. The court held that the estate of a deceased patient holds the doctor-patient privilege and has the right to communicate freely with the decedent's treating physicians. The privilege survives the patient's death and is not waived simply by the estate's assertion of a medical defense or the patient's inability to communicate during treatment.

Issues

Whether the doctor-patient privilege applies to physicians who treated a patient who was unable to communicate.
Whether the estate of a deceased patient holds the doctor-patient privilege and may communicate with the decedent's physicians.
Whether the assertion of a medical condition as a defense constitutes a total waiver of the doctor-patient privilege.

Disposition. remanded

Quotations verified verbatim against the opinion

“The estate has a right to freely communicate with Hale’s doctors, thoroughly investigate her condition with them, and assert the privilege to the extent it is appropriate.”

“Hale’s death and the fact that the estate is not a patient are irrelevant: the privilege was Hale’s, it continues after her death, and only her personal representative can waive it.”

Opinion

WORK, J.

Factual and Procedural Background

Lilian Hale (Hale) was driving on the wrong side of the road when she collided with a car driven by Carol DeFelice (DeFelice). Hale was taken to a hospital where it was determined she had severe left-side paralysis and multiple malignant brain tumors. She died 10 days later.

DeFelice and her husband (DeFelices) filed a personal injury action against Hale’s estate and personal representative (collectively estate) for

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negligence and loss of consortium. The estate answered that Hale was not negligent but rather the accident was an act of God.

The DeFelices listed two of Hale’s treating physicians as experts on their expert designation. When the estate learned the DeFelices had contacted the doctors without its permission, it sought an order restraining the DeFelices from making “ex parte” contact with the physicians but allowing the estate to communicate with them. The court prohibited contact with the doctors by the DeFelices, but refused to let the estate communicate with the doctors except through formal discovery because they had been designated as De-Felices’ experts.

The estate’s petition for writ of mandate contends it holds the doctor-patient privilege and cannot be precluded from speaking with its own physicians.

The DeFelices respond there are no privileged communications to protect because (1) the doctors only treated Hale in the hospital 10 days before she died when she could not communicate with them, (2) the estate put Hale’s entire medical condition into issue by arguing Hale had “an unknown medical condition” and (3) Hale is deceased and the estate is not the doctors’ patient. The DeFelices also ask us to allow them to contact the doctors informally outside normal discovery channels.

Discussion

Under the trial court’s ruling, neither the estate of the woman who was treated by the doctors nor the parties purportedly retaining them as experts may speak with the doctors unless they hire a reporter and take a deposition. Whatever else may be said about it, the ruling cannot stand as to the estate without doing violence to the doctor-patient privilege.

Hale v. Superior Court

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WORK, J.

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