Majority
Opinion
These consolidated writ matters arise out of a confrontation between a litigant’s right to discovery and the privacy rights of a person not party to that litigation. Plaintiff in the underlying suit is a woman who claims injury as a result of her mother’s ingesting the drug diethylstilbestrol (DES) while plaintiff was in útero. Named as defendants are a number of pharmaceutical companies who are alleged to have manufactured and distributed the drug, and against whom plain
Procedural Background
The issue in Jones arose when one of the named defendants, Eli Lilly & Company (Lilly), took petitioner’s deposition. She answered questions about her medical history before and up to the time of plaintiff’s birth, recounting conversations with her physician, pharmacist, husband, and others regarding her pregnancy and the administration of DES, but she initially refused to give the names of the physicians, pharmacists, and the hospitals she had utilized during her pregnancy, and she refused to answer any questions relating to her medical history after the birth of plaintiff.
Lilly then moved to compel answers, and appended to its motion a copy of an affidavit from Ralph M. Richart, M.D., which had been filed in an apparently similar action against Lilly in New Jersey. Dr. Richart’s affidavit, after stating his qualifications in the field of obstetrics, asserts that where a mother took DES, her “entire medical history,” and especially her obstetrical and gynecological history, would be “extremely important in determining whether the [DES] she took had any effect on the plaintiff, and whether this pharmaceutical was properly prescribed.” According to the affidavit it would be important for these purposes to know, in addition to facts relating to the mother’s pregnancy with the plaintiff, whether the mother’s history reflects any genetic defects which could cause obstetrical problems; all details sur
1 We will use the term “petitioner" to refer to Jones throughout this opinion. We will refer to her daughter as “plaintiff,” and to the other real parties in interest as “defendants."
Petitioner’s counsel, in response to the motion to compel answers, represented to the court that petitioner would be willing to respond to questions about her medical history prior to plaintiff’s birth, including the names of the doctors, pharmacists, and hospitals, but she continued to resist discovery directed toward the postpartum period on grounds of statutory privilege, constitutional right of privacy, and relevancy.
After hearing on the motion, the trial court ordered petitioner to respond to 14 certified questions, including 11 questions relating to the period prior to plaintiff’s birth (which petitioner is apparently willing to answer) and 3 questions relating to the subsequent period. These latter three questions asked: “Who was your obstetrician for [plaintiff’s younger brother] Steven?”; “Were all your children born in the same hospital?”; and “You lost one of your twins. Was that at birth?” In addition, respondent court ordered generally that petitioner “answer questions at her deposition regarding her medical history subsequent to the date of birth of plaintiff.” These directives were accompanied by a protective order to the effect that the information disclosed was to be used solely for the purposes of the litigation, and was to be disclosed only to the parties, their counsel, and consultants and experts retained by them.
The issue in Benny arose when plaintiff responded to interrogatories dealing with her mother’s medical history by saying she either did not know the requested information or knew only vague details.[2] The trial court ordered further response, apparently on the ground that she was obligated to seek such information from her mother.
2 Examples of these questions with petitioner’s responses are as follows: “7. If your natural mother has undergone illnesses, operations, hospitalizations or institutional confinements during her lifetime (italics in original), state for each: a. The nature and circumstance of each said confinement, including dates and places of each. b. The duration, including dates of admission and discharge from any hospital, its name and all convalescent periods, c. A description of the condition for which she was admitted each time, if any. d. A description of the treatment rendered, e. The name and address and relationship to her of all persons who treated or examined her and their address, f. The name and address of all hospitals or institutions involved, g. The nature and extent of any permanent disabilities or residual effects. RESPONSE: a.... a hysterectomy at some hospital in the East Bay Area, the exact place and date unknown; ... b.... *543 PlaintifF does not know who treated her mother concerning the hysterectomy.... g. Unknown to Plaintiff.... 8. State the time, place and circumstances of any medical examination or treatment your natural mother has had by any physician, or by a limited medical practitioner, and as to each physician or each limited medical practitioner, state: a. The name, address and specialty of each. b. Each date of consultation, examination or treatment, c. A description of the condition for which each doctor was seen, d. A description of the treatment rendered. RESPONSE: Plaintiff knows that her mother has been to the doctor on several occasions, does not know whether for examination or treatment nor any other details concerning such visits, except as explained in response to the preceding interrogatory.... 11. State whether your natural mother has ever been afflicted with a mental illness or a nervous disorder. If so, state: a. The name and give a description of each mental illness or nervous disorder, b. The date on which she first became aware of such mental illness or nervous disorder, or the date on which diagnosis had been made by a physician, whichever is applicable, including the name and address of each physician who made a diagnosis. RESPONSE: Not to Plaintiff’s knowledge.”
I
Jones v. Superior Court
Jones’ petition calls for consideration of both statutory and constitutional principles. We will discuss the applicability of those principles in general terms, and then bring them to focus upon the issues posed by the trial court’s order.
Physician-patient Privilege
Evidence Code section 994 provides, subject to statutory exceptions, that a “patient, whether or not a party, has a privilege to refuse to dis
Defendants assert what amounts to a threshold question concerning the statutory privilege. They rely upon three exceptions to the privilege any of which, if applicable, would mean that petitioner’s privilege was automatically eliminated, or at least substantially diminished, by the action of her daughter in instituting this lawsuit and without regard to the nature of petitioner’s participation in the litigation. The exceptions to which we refer provide that there is no privilege with respect to communications relevant to an issue concerning the condition of the patient “in a proceeding to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown” (Evid. Code, § 999), or where such issue “has been tendered” by either a “party claiming through or under the patient” (Evid. Code, § 996, subd. (b)), or a “party claiming as a beneficiary of the patient through a contract to which the patient is or was a party ...” (Evid. Code, § 996, subd. (c)). We consider each of these provisions in turn.
Prior to 1975, section 999 afforded an exception from the privilege in a proceeding to recover damages “on account of the conduct of the patient which constitutes a crime.” The amendment of that year eliminated the emphasized phrase and substituted for it the present language relating to good cause for disclosure. The Law Revision Commission commentary to the amendment characterizes the former “criminal conduct” exception as “burdensome, difficult to administer, and ill designed to achieve the purpose of making needed evidence available.” As an example of the section’s new scope, the commentary refers to “a personal injury action brought against an employer based on the negligent conduct of his employee who was killed in the accident.” Nothing in the legislative history of the amendment, or in its common sense meaning, suggests that it applies to conduct of a patient which is neither criminal nor wrongful in any legal sense, simply because that conduct—in this case the consumption of prescribed drugs—is alleged to constitute the physical medium by which the defendant’s tortious act is communicated to the plaintiff. Plaintiff in this case sues, not “on account of the conduct of” her mother, but on account of the conduct of defendants, who
Similarly, plaintiff by her instant action is not “claiming through or under the patient” within the meaning of subdivision (b) of section 996. That language is derived from rule 27(4) of the Uniform Rules of Evidence, drafted in 1953 'by the National Conference of Commissioners on Uniform State Laws, and is characterized by the California Law Revision Commission as applying to “a plaintiff in the patient’s shoes.” (6 Cal. Law Revision Com. Rep. (1964) p. 413.) The example given is an action by a patient “by guardian to set aside a deed by patient or to cancel a contract for want of capacity of the patient to execute the instrument” (ibid.). Plaintiff does not stand in her mother’s shoes, she stands in her own; and the injuries she complains of are to her own body. Nothing in the legislative history, and no cited authority, supports application of the “through and under” exception here.[3]
Finally, plaintiff cannot reasonably be said to be “claiming as a beneficiary of the patient through a contract to which the patient is or was a party” within the meaning of subdivision (c) of section 996. Though her complaint invokes express and implied warranties, it is well established that an action based upon such theories may be maintained by an injured party against the manufacturer of biologies despite the absence of privity (Gottsdanker v. Cutter Laboratories (1960) 182 Cal.App.2d 602 [ 6 Cal.Rptr. 320 , 79 A.L.R.2d 290 ]; Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424 [ 79 Cal.Rptr. 369 ]; 2 Witkin, Summary of Cal. Law (8th ed. 1973) Sales, § 99, p. 1163) and that this “warranty” without privity is not a contractual warranty at all, but really a species of strict tort liability. (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 809, p. 3105; see Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 , 63 [ 27 Cal.Rptr. 697 , 377 P.2d 897 , 13 A.L.R.3d 1049 ].)
While petitioner’s statutory privilege may have survived her daughter’s filing of this lawsuit, it did not remain unaffected by her own actions in making partial disclosures of privileged communications
3 In support of the applicability of the section 996, subdivision (b) exception, real parties point to allegations in plaintiffs complaint that when petitioner took DES she was acting as plaintiffs “agent.” These allegations were in support of a cause of action for fraud, which has since been dismissed. We do not regard them as a sufficient basis for characterizing plaintiffs claim as one “through or under” her mother. (We refrain from considering whether they present a classic case of “undisclosed principal.”)
Petitioner’s privilege is, however, subject to Evidence Code section 912, which provides (in subd. (a)) that the right of a person to claim the privilege “is waived with respect to a communication protected by such privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication.” By testifying freely that she ingested DES, and as to certain of the circumstances in which she did so, petitioner has disclosed a “significant part” of her communications with physicians on that subject, and on the inextricably related subject of her pregnancy with plaintiff. Thus, she has waived her statutory privilege as to these matters.
It does not follow that petitioner, by disclosing portions of communications relating to her consumption of DES and her pregnancy with plaintiff, has waived her privilege as to all otherwise protected commu
4 Initially, the exception was limited to “an action to recover damages for personal injuries” (former Code Civ. Proc., § 1881, subd. (4)). With the adoption of the Evidence Code in 1965, the exception was broadened to extend its application to other matters in which the patient tenders the issue of his condition by instituting legal proceedings, as in an “[ajction by patient to recover disability benefits under an insurance policy.” (6 Cal. Law Revision Com. Rep. (1964) p. 413.) Lilly suggests that plaintiff and her mother were “joint patients” in medical treatment, and for that reason joint holders of the privilege. Even if the suggestion had merit, it would not yield the result which Lilly seeks, for section 912, subdivision (b) provides: “Where two or more persons are joint holders of a privilege provided by Section ... 994 (physician-patient privilege) ... a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege.”
Defendants observe, and we agree, that the scope of waiver is not limited to what the patient intends: “As is stated in 8 Wigmore, Evidence, section 2327 (McNaughton rev. 1961), ‘There is always the objective consideration that when his ... conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not.’” (Kerns Constr. Co. v. Superior Court (1968) 266 Cal.App.2d 405 , 414 [ 72 Cal.Rptr. 74 ].) But section 912 prescribes waiver with respect to “a communication” where there has been disclosure of a “significant part of the communication.” We are prepared to accept that the term “communication” deserves, in this context, a liberal construction. A patient, for example, who has disclosed her conversation with a physician on Monday ought not be permitted to claim the privilege with respect to a conversation with the same physician and relating to the same subject matter on Tuesday. Arguably, the same is true where the patient consults more than one physician concerning the same subject matter, and discloses her communication with one of them. But it would distort the statutory language beyond its apparent meaning to say that the waiver extends to all communications with any physician at any time.
It would seem that the scope of the waiver should be determined primarily by reference to the purpose of the privilege, which, according to the Supreme Court, is “to preclude the humiliation of the patient that might follow disclosure of his ailments” (City & County of S. F. v. Superior Court, supra, 37 Cal.2d 227 , 232). Where the disclosure sought is so related to the disclosure already made that the patient could not
5 Lilly contends that petitioner has also waived her privilege in authorizing release of her medical records to plaintiff and by discussing her medical treatment with various people. The record evidence of such disclosures indicate they were limited to the matter of petitioner’s pregnancy with plaintiff. Thus, for present purposes, they are redundant.
It may be appropriate to say, for example, that petitioner is no longer in a position to invoke the privilege with respect to communications concerning prescription of DES for subsequent pregnancies; but it does not follow that she retains no interest in the confidentiality of other portions of her medical history, even assuming that history is relevant, as defendants contend, to the resolution of the factual issues posed in the litigation. Under the statutory scheme,' a party’s need to know certain information will not overcome a nonparty’s privilege under circumstances in which that privilege is otherwise properly invoked. (Cf. Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594 , 603 [ 162 Cal.Rptr. 724 ]; Boddy v. Parker (1974) 45 App.Div.2d 1000 [ 358 N.Y.S.2d 218 ]; King v. O’Connor (1980) 103 Misc.2d 607 [ 426 N.Y.S.2d 415 ].) If there is need for broader discovery in a case of this sort, the remedy lies with the Legislature, and not with the courts.[6]
The statutory privilege protects only against disclosure of “confidential communications” between patient and physician, and while that term is broadly defined to include any diagnosis made and advice given by the physician in the course of the physician-patient relationship (Evid. Code, § 992; see Britt v. Superior Court, supra, 20 Cal.3d 844 , 862, fn. 7), it does not include information which does not intrude upon that relationship. Moreover, the scope of the privilege and of waiver is itself affected by constitutional principles. We therefore move to consideration of those principles before attempting further application of our analysis.
Constitutional Right of Privacy
There can be little doubt but that petitioner’s medical history is entitled to a measure of protection under both federal and state Consti
6 As Professor Chafee observed nearly 40 years ago, in commenting upon the Code of Evidence drafted by the American Law Institute, “... no matter how numerous and careful the limitations, some new situation is bound to arise where secrecy ought not to be maintained; yet the Code will prevent disclosure because the draftsmen ... could not foresee this situation and so failed to insert any limitation to take care of it.” (Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Standi (1943) 52 Yale L.J. 607 , 616.)
Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669 [ 156 Cal.Rptr. 55 ] involved an attempt by a state licensing agency to obtain the complete medical-hospital records of five named patients of a San Diego doctor under investigation by the board for alleged incompetence or gross negligence. The court opined: “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.... [II] The individual’s right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones. The state of a person’s gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person’s bank account, the contents of his library or his membership in the NAACP. We conclude the specie of privacy here sought to be invaded falls squarely within the protected ambit, the expressed objectives of article I, section 1.” (Id., at pp. 678-679. See also Britt v. Superior Court, supra, 20 Cal.3d 844 , 863-864.)[7]
Surely no aspect of a woman’s medical profile is more sensitive in terms of privacy interests than her obstetrical-gynecological history. It is precisely in the areas of marriage (Loving v. Virginia (1967) 388
7 LilIy contends that Gherardini was erroneously decided in light of People v. Privitera (1979) 23 Cal.3d 697 [ 153 Cal.Rptr. 431 , 591 P.2d 919 ], cert, den., 444 U.S. 949 [ 62 L.Ed.2d 318 , 100 S.Ct. 419 ]. That case, however, held simply that article I, section 1 does not encompass “the ... right to obtain drugs of unproven efficacy” (id., at p. 702), a far cry from governmentally compelled intrusion into one’s medical history.
The constitutional right is by no means absolute. The state’s interest in facilitating the ascertainment of truth in connection with legal proceedings is substantial enough to compel disclosure of a great variety of confidential material, including even communications between a psychotherapist and his patient. (In re Lifschutz, supra, 2 Cal.3d 415 , 432-433.) But intrusion upon constitutionally protected areas of privacy requires a “balancing of the juxtaposed rights, and the finding of a compelling state interest.” (Board of Medical Quality Assurance v. Gherardini, supra, 93 Cal.App.3d at p. 681; Britt v. Superior Court, supra, 20 Cal.3d 844 ; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 , 657 [ 125 Cal.Rptr. 553 , 542 P.2d 977 ].) Thus, petitioner’s privacy interests must be carefully weighed against the legitimate interests of real parties in preparing their defense.
Conclusion
The 11 specific questions which the trial court ordered petitioner to answer relating to the period prior to plaintiff’s birth (and which petitioner is apparently willing to answer) seek information concerning the physician who prescribed DES, the pharmacy which filled the pre
The three specific questions which the trial court ordered petitioner to answer relating to the period after petitioner’s birth (and which petitioner is unwilling to answer) likewise do not call for communications within the statutory privilege. And, in our opinion, the trial court was justified in concluding that such questions did not unreasonably intrude upon petitioner’s constitutional right to privacy. We conclude, therefore, that this portion of the trial court’s order was proper.
There remains for consideration the propriety of the trial court’s order directing petitioner generally to answer questions regarding her medical history subsequent to plaintiff’s birth. If this order were interpreted to require petitioner to respond to all such questions, upon penalty of sanctions, the order would be invalid under the tests we have discussed. Petitioner’s waiver of her statutory patient-physician privilege does not extend to her lifetime medical history, but only to those matters as to which, based upon her disclosures, it can reasonably be said she no longer retains a privacy interest. And, while defendants have arguably demonstrated in general terms through Dr. Richart’s declaration that some matters relating to that medical history might be relevant to determination of issues in the litigation,[8] the record does not reflect the sort of specificity and careful balancing of interests which the Constitution requires for such a broad-scale invasion of privacy.
Defendants contend, however, and we agree, that this portion of the ' court’s order was not intended, and ought not be interpreted, as a blanket directive but rather as a denial by the trial court of petitioner’s blanket claim of immunity from obligation to answer any questions relating to the period after plaintiff’s birth. Viewed in that light, the order does not offend petitioner’s rights, since questions may be asked con
8 Dr. Richart’s declaration was supplemented on appeal by declarations from other physicians. Because in our view it is the trial court which must undertake the balancing of interests in the first instance, we refrain from passing judgment upon that supplemental material.
II
Benny v. Superior Court
The issue posed by the order which plaintiff Benny complains of—requiring her, in effect, to attempt to obtain certain information from her mother in order to respond to certain interrogatories—calls, we believe, for similar deference to the trial court’s discretion. “A party may not refuse to admit or deny matters set forth in a request for admissions of fact . .. merely because he lacks personal knowledge of those facts if the means of knowledge are reasonably within his power. In Chodos v. Superior Court [1963] 215 Cal.App.2d 318 [ 30 Cal.Rptr. 303 ], it was held ... that a party without personal knowledge would be required to make a reasonable investigation to ascertain the facts when it affirmatively appeared that he had available to him sources of information as to the facts or matters involved in the request for admissions.” (Lindgren v. Superior Court (1965) 237 Cal.App.2d 743 , 746 [ 47 Cal.Rptr. 298 , 20 A.L.R.3d 748 ]; accord, Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267 , 275 [ 150 Cal.Rptr. 828 ].) While these cases involved requests for admissions, there appears to be no reason for a different rule in the case of interrogatories. (See Powers, A Guide to Interrogatories in California Practice (1975) 48 So.Cal.L. Rev. 1221, 1268.)
We, of course, do not suggest that a mother’s information is necessarily or even typically within the power of her daughter to obtain for the asking. The relationship of mothers and daughters is undoubtedly as varied as human beings upon the earth, and certainly beyond the power
9 It has been held that “where an exception to a privilege depends upon the content of a communication, the court may require disclosure in camera in making its ruling.” (Mavroudis v. Superior Court, supra, 102 Cal.App.3d 594 , 606; see also In re Lifschutz, supra, 2 Cal.3d at p. 437, fn 23; Valley Bank of Nevada v. Superior Court, supra, 15 Cal.3d at p. 658.) Such a procedure may be useful in this type of case.
Both petitions for peremptory writ are denied, and the alternative writs are discharged.
Racanelli, P. J., and Elkington, J., concurred.
Cases cited
- Sindell v. Abbott Laboratories 26 Cal.3d 588 p. 541
- Oceanside Union School District v. Superior Court 58 Cal.2d 180 at 185-186 p. 543
- Roberts v. Superior Court 9 Cal.3d 330 at 336 p. 543
- Rudnick v. Superior Court 11 Cal.3d 924 at 928, at 929 p. 543, p. 544
- Gottsdanker v. Cutter Laboratories 182 Cal.App.2d 602 p. 545
- Grinnell v. Charles Pfizer & Co. 274 Cal.App.2d 424 p. 545
- Greenman v. Yuba Power Products, Inc. 59 Cal.2d 57 at 63 p. 545
- City & County of San Francisco v. Superior Court 37 Cal.2d 227 at 232 p. 546, p. 547
- Britt v. Superior Court 20 Cal.3d 844 at 864, at 862, at 863-864 p. 547, p. 548, p. 549, p. 550
- In re Lifschutz 2 Cal.3d 415 at 431, at 431-432, at 432-433 p. 547, p. 549, p. 550
- Hallendorf v. Superior Court 85 Cal.App.3d 553 p. 547
- Kerns Construction Co. v. Superior Court 266 Cal.App.2d 405 at 414 p. 547
- Mavroudis v. Superior Court 102 Cal.App.3d 594 at 603 p. 548
- King v. O'Connor 103 Misc.2d 607 p. 548
- Griswold v. Connecticut 381 U.S. 479 at 484 p. 549
- White v. Davis 13 Cal.3d 757 at 773 p. 549
- Porten v. University of San Francisco 64 Cal.App.3d 825 at 829 p. 549
- Board of Medical Quality Assurance v. Gherardini 93 Cal.App.3d 669 p. 549
- Loving v. Virginia 18 L.Ed.2d 1010 p. 550
- Skinner v. Oklahoma ex rel. Williamson 316 U.S. 535 at 541-542 p. 550
- Eisenstadt v. Baird 405 U.S. 438 at 453-454 p. 550
- Prince v. Massachusetts 321 U.S. 158 at 166 p. 550
- Pierce v. Society of Sisters 268 U.S. 510 at 535 p. 550
- Roe v. Wade 410 U.S. 113 at 153 p. 550
- United States v. 12 200-ft. Reels of Super 8mm. Film 413 U.S. 123 at 127 p. 550
- Valley Bank of Nevada v. Superior Court 15 Cal.3d 652 at 657, at 658 p. 550, p. 552
- Henard v. Superior Court 26 Cal.App.3d 129 at 133 p. 551
- Chodos v. Superior Court 215 Cal.App.2d 318 p. 552
- Lindgren v. Superior Court 237 Cal.App.2d 743 at 746 p. 552
- Smith v. Circle P Ranch Co. 87 Cal.App.3d 267 at 275 p. 552
- Pantzalas v. Superior Court 272 Cal.App.2d 499 p. 553
- Bunnell v. Superior Court of Alameda Cty. 254 Cal.App.2d 720 p. 553