Gobuty v. Kavanagh, Civ. No. 4-91-380.

795 F. Supp. 281

Adrienne GOBUTY and Michael Gobuty, Plaintiffs, v. Brian F. KAVANAGH, M.D., Mayo Clinic, St. Mary's Hospital, Defendants.

ST. MARY'S HOSPITAL, Counter-Claimant, v. Adrienne GOBUTY, Counter-Defendant.

Civ. No. 4-91-380.

United States District Court, D. Minnesota, Fourth Division.

June 1, 1992.

Allan F. Shapiro, Goff, Kaplan, Wolf & Shapiro, North St. Paul, Minn., for plaintiffs.

William R. Stoeri, Creighton R. Magid, Stacey M. Fuller, Dorsey & Whitney, Minneapolis, Minn., Benjamin R. Hippe, Mayo Clinic, Legal Dept., Rochester, Minn., for defendants.

MEMORANDUM AND ORDER

MacLAUGHLIN, Chief Judge.

This matter is before the Court on defendants' appeal of the January 31, 1992 order of the United States Magistrate Judge. The order will be affirmed.

FACTS

This is a medical malpractice action brought by plaintiffs Adrienne and Michael Gobuty against defendants Brian F. Kavanagh, M.D., Mayo Foundation, and St. Mary's Hospital. Plaintiffs, citizens of Canada, allege that the defendants were negligent in their care and treatment of Ms. Gobuty's left hip. Jurisdiction is premised upon diversity of citizenship.

Plaintiffs brought this action in May 1991. On June 7, 1991, counsel for defendants sent a medical authorization form to plaintiffs' counsel and asked that it be executed and returned. The proposed authorization would have permitted Ms. Gobuty's treating physicians to release copies of her medical records and to consult privately with defendants' attorneys. Instead of executing this form, plaintiffs provided limited authorizations entitling defendants to obtain all medical records, but not to hold ex parte interviews.

Defendants brought a motion to compel Ms. Gobuty to sign an authorization form permitting ex parte interviews. By order of January 31, 1992, 141 F.R.D. 136, the Magistrate Judge denied defendants' motion, concluding that the waiver of the physician-patient privilege did not extend to allowing defense counsel private interviews. The Magistrate Judge first determined that because this case is premised upon diversity jurisdiction, Minnesota state law governs the issue of privilege. Under Minn.Stat. § 595.02, subd. 5, a plaintiff, by commencing a medical malpractice action, waives the physician-patient privilege as to any information in the possession of his treating physicians. This waiver permits a defendant to informally communicate with plaintiff's treating physicians if the physicians so consent, so long as the defendant notifies the plaintiff at least fifteen days in advance and permits plaintiff's authorized representative to be present at any such discussions. The Magistrate Judge interpreted subdivision 5 as conditioning the scope of plaintiff's waiver, and consequently the defendants' right to conduct informal discussions, upon notification and the opportunity of plaintiffs to be present. In so holding, the Magistrate Judge rejected defendants' argument that the portion of the statute affording plaintiffs the right to notice and to be present was procedural in character which, in accordance with Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), did not apply in the federal courts.

This matter is now before the Court on defendants' appeal from the Magistrate Judge's order. The Court may modify or set aside any portion of the order found to be clearly erroneous in fact or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D.Minn. LR 72.1(b)(2).

DISCUSSION

The issue before the Court involves the physician-patient privilege. Because this is a diversity case, the Court must follow Minnesota law as to the existence and scope of the privilege. Cerro Gordo Charity v. Fireman's Fund Am. Life Ins. Co., 819 F.2d 1471, 1477 (8th Cir.1987) (citing Fed.R.Evid. 501); Filz v. Mayo Found., 136 F.R.D. 165, 168 (D.Minn.1991). While the common law did not recognize a physician-patient privilege, see State v. Staat, 192 N.W.2d 192, 195 (Minn.1971), Minnesota has adopted one by statute. Minn.Stat. § 595.02 provides in relevant part:

A licensed physician ... shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity....

Minn.Stat. § 595.02, subd. 1(d).

State law also controls what constitutes a waiver of the physician-patient privilege. Lind v. Canada Dry Corp., 283 F.Supp. 861, 863 (D.Minn.1968). In Minnesota, a plaintiff, by filing a medical malpractice action, automatically waives the privilege to the extent provided by statute:

A party who commences an action for malpractice ... against a health care provider ... waives in that action any physician-patient privilege.... This waiver must permit all parties to the action ... to informally discuss the information or opinion with the health care provider if the provider consents. Prior to an informal discussion with a health care provider, the defendant must mail written notice to the other party at least 15 days before the discussion. The plaintiff's attorney ... must have the opportunity to be present at any informal discussion.

Minn.Stat. § 595.02, subd. 5.

Before this waiver provision was enacted, the Minnesota Supreme Court in Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333 (1976) held that while a plaintiff automatically waived the privilege by placing his health in issue, that waiver did not extend to allowing the defendant ex parte contact with plaintiff's treating physicians. The plaintiffs in that case commenced a medical malpractice action against defendant physician. Pursuant to Minn.R.Civ.P. 35.03, which provides for a waiver of the medical privilege when a party places his health in issue, plaintiffs executed medical authorizations supplied by the defendant. Plaintiffs revoked their authorizations upon learning that the defendant intended to privately interview their other treating physicians. Defendant moved the trial court for an order directing plaintiffs to provide him with an authorization permitting ex parte interviews. The trial court granted defendant's motion, and plaintiffs promptly applied to the supreme court for a writ of prohibition. Defendant argued that the required waiver was coextensive with the scope of the privilege; in other words, if the plaintiffs placed their health in issue, they completely, not partially, waived the privilege. Defense counsel should therefore be free to conduct ex parte interviews of plaintiffs' treating physicians. In response, plaintiffs contended that the waiver was limited, extending only to written medical records and, in certain instances, a deposition of the treating physician. Private interviews, according to the plaintiffs, were still precluded by the privilege.

The supreme court, agreeing with the plaintiffs, concluded that the waiver was limited and did not go so far as to permit ex parte interviews of plaintiffs' treating physicians. Id. 240 N.W.2d at 336. According to the court, Rule 35.04, which limits the scope of the privilege's waiver to the disclosure of medical records and the taking of the physician's deposition, "is, and ought to be, the exclusive means by which an adverse party may discover testimony relating to a patient's physical, mental, or blood condition...." Id. The court reasoned that the waiver was based upon Minnesota's policy of requiring the full disclosure of all relevant medical evidence. Rule 35.04 implemented this policy by allowing access to this evidence according to an orderly discovery procedure. Id. This procedure, the court continued, best protects both the patient and the physician. First, the presence of the patient's attorney permits the patient to know what his doctor's testimony is, allays fears that his doctor may inadvertently disclose personal confidences, and best preserves the complete trust essential to the successful treatment of the patient. Id. at 337. Second, the presence of the patient's attorney protects the doctor from unwittingly and improperly disclosing medical information about his patient, which could subject the doctor to sanctions such as tort liability or the suspension or revocation of his license. Id. at 337 & n. 3. In the court's view, the only justification for permitting ex parte physician interviews was to provide defense counsel with a possible tactical advantage. Balancing the interests involved, the court determined that this possible tactical advantage did not justify "exposing doctors to the hazard of potential tort liability for unwarranted disclosures of confidential information in private, nonadversary interviews...." Id. at 337. The court rejected defendant's argument and crafted a rule prohibiting all ex parte interviews absent a plaintiff's consent.

Ten years after Wenninger was decided, the legislature amended Minn.Stat. § 595.02 to include the automatic waiver provision. See 1986 Minn.Laws ch. 455 § 84, at 881. This amendment relaxed the Wenninger rule by redefining the scope of the waiver to include informal discussions, subject to a plaintiff's right to fifteen days' notice and the opportunity to be present. The Minnesota Supreme Court construed subdivision 5 in Blohm v. Minneapolis Urological Surgeons, P.A., 449 N.W.2d 168 (Minn.1989). The plaintiff in that case brought a medical malpractice action in state court against certain physicians, alleging negligent treatment following cancer surgery. After the cut-off date for formal discovery, defense counsel notified the plaintiffs pursuant to Minn.Stat. § 595.02, subd. 5 that he would be conducting an "informal discussion" with a different physician that had also examined the plaintiff. The trial court denied defendants leave to conduct this discussion, and, after the Minnesota Court of Appeals denied relief, the defendants sought a writ of prohibition in the supreme court.

The supreme...