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PEARLENA MOSES v. DANIEL T. MCWILLIAMS (09/28/88)

filed: September 28, 1988.

PEARLENA MOSES, APPELLANT,
v.
DANIEL T. MCWILLIAMS, ESQ., MARVIN KRANE, M.D., AND ALBERT EINSTEIN MEDICAL CENTER. PEARLENA MOSES, APPELLANT, V. UNDERWRITERS ADJUSTING COMPANY



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 4356 February Term, 1983. Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 3167 September Term, 1982.

COUNSEL

William Marvin, Philadelphia, for appellant.

H. Robert Fiebach, Philadelphia, for McWilliams, appellee.

Howard M. Cyr, III, Philadelphia, for Krane, appellee.

S. David Fineman, Philadelphia, for Albert Einstein Medical Center, appellee.

Cirillo, President Judge, and Brosky, Olszewski, Del Sole, Montemuro, Tamilia, Kelly, Popovich and Johnson, JJ. Cirillo, President Judge, files a concurring and dissenting Opinion in which Olszewski and Tamilia, JJ., join. Del Sole, J., files a concurring statement.

Author: Montemuro

[ 379 Pa. Super. Page 154]

This is a consolidated appeal from four orders issued by the Philadelphia County Court of Common Pleas dismissing the complaints of appellant Pearlena Moses in two separate actions in trespass, one against appellee Underwriters' Adjusting Company (Underwriters), the other against appellees Albert Einstein Medical Center (Albert Einstein), Dr. Marvin Krane, and Daniel T. McWilliams, Esq.*fn1 Both cases arose from a medical malpractice action filed by appellant following a hysterectomy she underwent in the summer of 1977.

In July of 1977, appellant was admitted to the emergency room at Albert Einstein. There, an intern diagnosed her as suffering from pelvic inflammatory disease. She was released with instructions to take a prescription for antibiotics. Her condition worsened, necessitating her admission to another hospital where she came under the care of appellee Dr. Marvin Krane. On July 7, 1977, he performed a total hysterectomy on her and continued to treat her until he released her to the care of her private physician in November 1977. Appellant then brought suit against Albert Einstein Medical Center, alleging that the care she received there had been negligent and had necessitated the hysterectomy.

In the consolidated actions now before us, appellant alleges*fn2 that, in the malpractice action, Albert Einstein hired Underwriters to manage its defense of the case. Underwriters, in turn, retained appellee Daniel T. McWilliams to represent Albert Einstein. Underwriters wrote to Dr. Krane and asked that he contact its representatives to discuss appellant's medical condition. Neither appellant nor her attorney were notified of this request. Dr. Krane

[ 379 Pa. Super. Page 155]

    complied with the request and, in conversations with both an Underwriters employee and with McWilliams, revealed information that he had gained in the course of his treatment of appellant.

Appellant claims that she first became aware of Dr. Krane's involvement in the case when her attorney was notified by Mr. McWilliams that he intended to call Dr. Krane as an expert witness at trial. Appellant's counsel informed Dr. Krane at that time that his communications with Mr. McWilliams were unauthorized and should cease immediately. Despite this injunction, Dr. Krane continued to meet with defense counsel, allowed McWilliams to review and copy portions of appellant's patient file, and testified at trial as a fact witness.*fn3

Appellant contends that as her treating physician Dr. Krane had a duty to refrain both from taking any actions which would be adverse to her interests in the malpractice litigation and from making any disclosures to other parties of information gained in the course of his treatment of her, unless authorized to do so either by her or by law. She also alleges that Dr. Krane had knowledge of or should have known of the provisions of the Interprofessional Code, the American Medical Association Principles of Medical Ethics, and the Hippocratic Oath, all of which provide for the maintenance of confidentiality between physician and patient. Appellant argues that because Dr. Krane ignored these provisions, and breached the confidence gained in treating her, he should be liable in tort for breach of the physician/patient privilege. She further asserts that Albert Einstein, McWilliams and Underwriters should be liable for inducing that breach. Accordingly, our initial inquiry on appeal, a question of first impression, is whether a treating physician's unauthorized and judicially unsupervised communications with his patient's adversary in a medical malpractice action are actionable as a breach of physician/patient confidentiality. Appellant argues, first, that a general

[ 379 Pa. Super. Page 156]

    cause of action for breach of the physician/patient confidentiality should exist; second, that a physician's judicially unsupervised and unauthorized communications with a patient's adversaries in litigation should give rise to that cause of action; and, third, that in such a context the defense of absolute privilege should not be available to the physician.*fn4 Appellant's last two questions presented concern her claim for defamation and are intertwined with the physician/patient confidentiality theory. She argues that the trial court erred in granting summary judgment before depositions were concluded, and also that the appellees should not be accorded the absolute privilege defense where the patient's confidentiality rights have been breached. We affirm the trial court's orders.

We first consider appellant's claim for breach of confidentiality and do so in light of the standard applicable

[ 379 Pa. Super. Page 157]

    for review of a judgment on the pleadings:*fn5 We accept as true all well-pleaded averments of fact and will uphold the trial court's decision only "in cases which are so free from doubt that trial would clearly be a fruitless exercise." Capanna v. Travelers Insurance Co., 355 Pa. Super. 219, 226, 513 A.2d 397, 401 (1986). We find that within the narrow factual context of this case, appellant has failed to state a cause of action for breach of confidentiality. To find otherwise would undermine several well-established principles of this Commonwealth. We must keep in mind that when Dr. Krane made his disclosures, appellant had voluntarily instituted a medical malpractice action against Albert Einstein and had thereby placed in issue her medical condition. Given a patient's qualified right to privacy in his or her medical records and an individual's reduced expectation of privacy as a result of filing a civil suit for personal injuries in conjunction with policies supporting both the physician/patient privilege statute*fn6 and the absolute immunity from civil liability granted to witnesses in judicial proceedings, we will not recognize the cause of action for breach of confidentiality as pled in this case.*fn7

Appellant argues that a physician's duty to maintain confidentiality outside of formal court proceedings is based upon the fiduciary nature of the physician-patient relationship,

[ 379 Pa. Super. Page 158]

    the constitutional right of privacy, and the ethical principles of the medical profession.

We first note that a patient's right to confidentiality is less than absolute. In order for a disclosure to be actionable at law, the disclosure must be made without legal justification or excuse. The law is replete with statutory justifications for disclosure that are deemed to outweigh the patient's right to confidentiality. For example, a physician has a duty to report otherwise confidential information relating to wounds or injuries inflicted by deadly weapons (18 Pa.C.S.S. § 5106), contagion (53 Pa.S.A. § 24663), child abuse (11 Pa.S.A. § 2204), and medical history in cases of adoption (23 Pa.C.S.A. § 2909). While the existence of reporting requirements is not controlling on the issue before us, it indicates the appropriateness of balancing the competing interests at stake when we evaluate the scope of the physician-patient privilege and the physician's duty of non-disclosure.

In In Re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980), then Chief Justice Eagen, writing for a three-judge plurality, concluded that "[d]isclosure of confidences made by a patient to a physician, or even of medical data concerning the individual patient could, under certain circumstances, pose such a serious threat to a patient's right not to have personal matters revealed that it would be impermissible under either the United States Constitution or the Pennsylvania Constitution." Id., 490 Pa. at 149-153, 415 A.2d at 77-78. However, as evidenced by the plurality's decision not to protect from discovery the particular medical records in that case,*fn8 the constitutional right to privacy concerning

[ 379 Pa. Super. Page 159]

    medical information is qualified. In that case, the court acknowledged that there would be "a limited invasion of privacy" but considered it "justified under the circumstances." Id., 490 Pa. at 152 n. 11, 415 A.2d at 78 n. 11. See also Denoncourt v. Commonwealth State Ethics Commission, 504 Pa. 191, 470 A.2d 945 (1983) (the constitutional right of privacy is not absolute).

Additionally, in tort law we recognize a right to privacy that is not constitutionally based. In Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), our supreme court defined the right as an " interest in not having [one's] affairs known to others." Id., 410 Pa. at 194-98, 189 A.2d at 149-50. The invasion of privacy is actionable when there is an unreasonable and serious interference with one's privacy interest.*fn9 Nonetheless, an individual's right to privacy is clearly qualified when that individual has filed suit for personal injuries. Forster, supra. In Forster, a plaintiff who was suing for personal injuries allegedly sustained in an automobile accident, was placed under surveillance by a private detective hired by defendant's insurance carrier. The purpose of the investigation was to record plaintiff's daily activities to ascertain the freedom of movement of her limbs. Because she felt the surveillance was invasive, plaintiff instituted suit against the detective for invasion of privacy and intentional infliction of emotional distress. Our supreme court found reasonable the manner in which the investigation was conducted and denied recovery on the invasion of privacy claim. The Court stated that

[ 379 Pa. Super. Page 160]

[i]n determining the extent of the interest to be protected, we must take cognizance of the fact that appellant has made a claim for personal injuries . . . . It is not uncommon for defendants in accident cases to employ investigators to check on the validity of claims against them. Thus, by making a claim for personal injuries Page 160} appellant must expect reasonable inquiry and investigation to be made of her claim and to that extent her interest in privacy is circumscribed.

Id., 410 Pa. at 196-97, 189 A.2d at 150 (footnote omitted) (emphasis added). See also Glenn v. Kerlin, 248 So.2d 834, 836 (La.App.1971) (although that jurisdiction recognizes a right to privacy and makes the invasion of that right actionable, once plaintiff has filed a suit for personal injuries and then attempts to recover in tort for allegedly wrongful disclosures by his doctor, plaintiff "no longer may claim the sanctity of his privacy"). In Forster, the supreme court concluded that that there is "much social utility to be gained" from investigation of claims because "[i]t is in the best interests of society that valid claims be ascertained and fabricated claims be exposed." 410 Pa. at 197, 189 A.2d at 150. The words of the supreme court in Forster are equally applicable to the case at bar. When Dr. Krane made his disclosures, appellant had already commenced a medical malpractice action wherein she alleged personal injuries. With the filing of suit, appellant's privacy expectations were reduced to the extent that she could anticipate that her claims would be investigated. It is in society's best interest that malpractice claims be investigated at the earliest possible stage to determine their validity.

Similarly, the Pennsylvania physician-patient privilege statute reflects the concept that there is a reduction in a patient's privacy interest and right to confidentiality when he or she files suit for personal injuries. The statute provides that:

[n]o physician shall be allowed, in any civil matter, to disclose any information which he acquired in attending the patient in a professional capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries.

42 Pa.C.S. § 5929 (emphasis added). By enacting this statute, our legislature has weighed competing policies to determine at what point the physician-patient privilege is lost or

[ 379 Pa. Super. Page 161]

    surrendered and has concluded that this loss or surrender occurs when a party institutes a civil action "on account of personal injuries." Appellant contends, however, that the statute sets forth the parameters of the testimonial privilege and that the exception does not apply outside of formal court proceedings. It was enacted, she argues, to balance a patient's right to privacy against the "unquestioned need for evidence in court." Brief of Appellant at 27 (emphasis added).

The statute should not be interpreted so narrowly that it encompasses only situations involving formal court proceedings. According to the canons of construction used in this Commonwealth, words in a statute are to be accorded their plain meaning. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); 1 Pa.C.S. § 1903(a). Nothing in the physician-patient privilege statute evinces a legislative intent that the exception for "civil matters brought by the patient" should apply only to disclosures made in a court-supervised setting. Patients waive the privilege when they institute civil actions for personal injuries. The statute applies to disclosures without reference to the stage in the proceedings at which they are made. The statute extends the privilege to the patient, not to the physician. Romanowicz v. Romanowicz, 213 Pa. Super. 382, 248 A.2d 238 (1968). By filing actions for personal injuries, the plaintiff-patients waive their privilege and, in effect, implicitly consent to disclosures by their physicians concerning matters relating to the plaintiff-patients' medical conditions.

Moreover, contrary to appellant's assertions, ethical considerations and the Commonwealth's medical licensing statutes do not provide a clear-cut source for recognizing a cause of action for breach under the facts as alleged in this case. The Hippocratic Oath does not serve as an absolute bar to disclosures: "Whatever in connection with my professional practice, or not in connection with it, I may see or hear in the lives of men which ought not to be spoken abroad I will not divulge . . . ." Similarly, the 1980 statement by the American Medical Association concerning a

[ 379 Pa. Super. Page 162]

    doctor's release of confidential information is broad, provides little guidance, and does not in any event, prohibit Dr. Krane's actions: "A physician shall respect the right of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences within the constraints of the law." Principle IV of the Medical Ethics of the American Medical Association (in effect at the time of Dr. Krane's disclosures). One of our central concerns in this case is to determine what "ought not to be spoken abroad" by a treating physician in the context of a medical malpractice action and what are "the constraints of the law." See generally Gellman, Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy, 62 N.C.L.Rev. 255 (1984). Even the Current Opinions of the Judicial Council of the AMA do not absolutely bar disclosures of confidences. In fact, Section 5.07 states that "[a] physician should respect the patient's expectations of confidentiality concerning medical records that involve the patient's care and treatment." As we have already noted, an individual's expectations of confidentiality are diminished when that individual files a civil action for personal injuries. To allow recovery at law for conduct such as Dr. Krane's that occurred within the context of a judicial action voluntarily instituted by appellant would ignore the fact that appellant's privacy interest was diminished by her commencement of the malpractice suit.

Finally, Pennsylvania's medical licensing statute, 63 P.S. § 422.41, does not provide appellant with a basis for a cause of action. The statute proscribes "unprofessional conduct."*fn10 The only sanctions that can be imposed upon a physician for unprofessional conduct are refusal, revocation or suspension by the board of the doctor's license. There is no provision for an independent cause of action against the doctor for money damages, nor is there any indication that the General Assembly intended to create one.

[ 379 Pa. Super. Page 163]

The policy of granting immunity from civil liability in the context of judicial proceedings also compels a finding that appellant has failed to state a cause of action under the facts as alleged in this case. Dr. Krane's statements were absolutely privileged from civil liability because they were made " in the regular course of judicial proceedings and . . . [were] pertinent and material " to the litigation. See Post v. Mendel, 510 Pa. 213, 220, 507 A.2d 351, 355 (1986) (quoting Kemper v. Fort, 219 Pa. 85, 93, 67 A. 991, 994-95 (1907)). See also Hoover v. Van Stone, 540 F.Supp. 1118, 1121 (D.Del.1982) ("[s]trict legal relevance need not be demonstrated; instead the allegedly defamatory statements must have only some connection to the subject matter of the pending action"). In the case at bar, there is no allegation that Dr. Krane's statements were not relevant or not pertinent to the litigation. Furthermore, "communications pertinent to any stage of judicial proceedings are accorded an absolute privilege." Pelagatti v. Cohen, 370 Pa. Super. 422, 436, 536 A.2d 1337, 1344 (1988) (emphasis added). See also Restatement (Second) of Torts § 588 comment b (1977) (the privilege protects a witness "while engaged in private conferences with an attorney at law with reference to proposed litigation").

The United States Supreme Court, discussing the reasons supporting this policy of immunity, has stated:

The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law. . . . In the words of one 19th-century court, in damages suits against witnesses, "the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to ascertainment of truth should be left as free and unobstructed as possible." A witness' apprehension of subsequent damages liability might induce two forms of censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.

[ 379 Pa. Super. Page 164]

[i]f the policy, which in defamation actions affords an absolute privilege or immunity to statements made in judicial and quasi-judicial proceedings is really to mean anything then we must not permit its circumvention by affording an almost equally unrestricted action under a different label.

Hoover v. Van Stone, 540 F.Supp. 1118, 1124 (D.Del.1982) (quoting Rainier's Dairies v. Raritan Valley Farms, 19 N.J. 552, 117 A.2d 889, 895 (1955)) (case involving claims of defamation, tortious interference with contractual relationships, abuse of process and barratry)). The court in Hoover also stated that:

[the counts of tortious interference with contractual relationships, abuse of process, and barratry] are all predicated on the very same acts providing the basis for the defamation claim. Application of the absolute privilege solely to the defamation count . . . would be an empty gesture indeed, if, because of artful pleading, the plaintiff could still be forced to defend itself against the same conduct regarded as defamatory. Maintenance of these kindred causes of action, moreover, would equally restrain the ability of judges, parties, counsel and witnesses to speak and write freely during the course of judicial proceedings.

Id. (emphasis added).

Appellant argues that the cases where the absolute privilege has been extended beyond the defamation claim can be distinguished from the case at bar. She argues that "plaintiffs in those cases had no basis to complain of the fact that the communication was made . . .[;] their grievance went solely to the content of the communication." Brief of Appellant at 61. However, appellant's claim is based upon the content of Dr. Krane's communications, not just the fact of communication. Appellant has lodged a claim against Dr. Krane because he disclosed information pertaining to her medical condition, not merely because he

[ 379 Pa. Super. Page 166]

    spoke with Mr. McWilliams and the insurance representative.*fn11

Moreover, witness immunity should and does extend to pre-trial communications. The policy of providing for reasonably unobstructed access to the relevant facts is no less compelling at the pre-trial stage of judicial proceedings. As one federal district court has stated in a case involving claims of negligence, fraudulent and innocent misrepresentation, defamation and intentional infliction of emotional distress brought by a defendant-doctor in a malpractice action against another doctor who had prepared advisory medical reports for a plaintiff in anticipation of a malpractice action:

The overriding concern for disclosure of pertinent and instructive expert opinions before and during medical malpractice actions is no less significant than the clearly recognized need for all relevant factual evidence during the course of litigation . . . . Physicians who wish to limit groundless malpractice suits obviously would support review of potential malpractice claims by fellow members of the medical profession. If doctors who provide expert reports are subjected to civil liability for the contents of their reports, fewer doctors will be willing to evaluate

[ 379 Pa. Super. Page 167]

    potential malpractice claims in advance of litigation. Rather, medical experts will only provide sworn expert testimony in medical malpractice cases that are in progress because witness immunity will protect those, and only those, statements. In the absence of expert review, then, meritless medical malpractice suits will be eradicated less frequently prior to filing. This result is neither desirable nor efficient.

Kahn v. Burman, 673 F.Supp. 210, 213 (E.D.Mich.1987) (citations omitted). The same principles apply to the case at bar. By granting immunity from liability to the doctor-potential witness for disclosures made that are relevant to the malpractice claim, the "paths which lead to ascertainment of truth" are left reasonably unobstructed, Briscoe, supra, 460 U.S. at 333, 103 S.Ct. at 1114. Meritless medical malpractice claims can be disposed of at the earliest possible stage of litigation by allowing free access to material and relevant facts once a claimant has filed suit. Because the plaintiff's expectations of privacy have been reduced with the instigation of litigation, there is no breach of confidentiality. We therefore recognize the absolute privilege as a bar to the claim for breach of confidentiality against Dr. Krane.

We note, as have other courts, that ex parte interviews are less costly*fn12 and easier to schedule than depositions, are conducive to candor and spontaneity, are a cost-efficient method of eliminating non-essential witnesses in a case where a plaintiff might have a number of treating physicians,

[ 379 Pa. Super. Page 168]

    and allow both parties to confer with the treating physicians. See, e.g., Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C.1983); State of Missouri, ex rel. Stufflebam, M.D. v. Appelquist, 694 S.W.2d 882, 888 (Mo.App.1985). Moreover, as the district court in Eli Lilly pointed out, although the purpose of the physician-patient privilege is to promote open communication, "the privilege was never intended . . . to be used as a trial tactic by which a party entitled to invoke it may control to his advantage the timing and circumstances of the relevant information he must inevitably see revealed at some time." 99 F.R.D. at 128 (emphasis added).*fn13 Further, the argument for preventing full disclosure of patient confidences rests upon a policy that seeks to promote the health of the citizen. Informed diagnoses are to some extent impossible without complete candor by the patient concerning his life and habits. To encourage that candor, a cloak of confidentiality is placed upon communications by a patient to his doctor. Nevertheless, lifting that ...


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