Pettus v. Cole

Opinion

In the first of these consolidated cases, appellant Louis Pettus (Pettus) timely appeals from a final judgment entered in favor of two psychiatrists, respondents Dr. Kathleen Bell Unger and Dr. Alan Cole, as to his claims of unauthorized release of medical information in violation of the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq. (hereinafter the CMIA or the Act)),^[2] and invasion of his constitutional right of privacy (Cal. Const., art. I, § l).^[3] At the close of Pettus’s case-in-chief in a bench trial, the court granted Drs. Unger’s and Cole’s motions for judgment pursuant to Code of Civil Procedure section 631.8.

In the second case, Pettus seeks review of the court’s judgment in favor of his employer, respondent E.I. du Pont de Nemours & Company, Inc. (hereinafter Du Pont), on claims of breach of contract, wrongful termination in violation of public policy, unauthorized use of medical information, and invasion of his constitutional right of privacy.^[4] The court denied Du Font’s motion pursuant to Code of Civil Procedure section 631.8 at the close of plaintiff’s evidence, but found against plaintiff on all claims following Du Font’s presentation of its case-in-chief.

In April 1984, Mr. Conn informed Pettus that he would be fired. There was conflicting testimony about Pettus’s performance at Flint. Pettus testified that to his knowledge he had performed well. Other evidence presented at trial indicated that he had received “generally favorable” performance evaluations during his first year in Flint. However, there was also testimony that Pettus’s shift had received several customer complaints during the last three or four months of his employment at the Flint plant, and that Pettus was criticized for failure to prepare an incident report, for miscommunication of shift changes, for poor preparation of meeting notes, and for time card errors. To avoid termination, Pettus transferred to a position as a warehouse operator in a Du Pont warehouse in Los Angeles, incurring a 50 percent reduction in salary.^[5]

Pettus believed that upon transferring to Los Angeles he would be given a position comparable to the one he held in Flint, and he became increasingly frustrated when this opportunity did not materialize. He continued to be bothered by the poor treatment he believed he had received in Flint. His physical and emotional problems returned: stress, skin rash and—for the first time—high blood pressure.

In July 1987, at his request, Pettus transferred to a Du Pont automotive finishing plant in Hayward, California. He was initially employed as a warehouse worker, but in December 1987 he was given the chance to move

In the fall of 1987 Pettus felt his anxiety return and his rash worsened. He sought medical attention from his personal physician who referred him to a psychiatrist, Dr. Walter Shervington. Pettus consulted with Dr. Shervington five to seven times in 1987.

During this time, Pettus was especially troubled by an incident relating to his failure to secure the sales assistant position. He had asked for help in learning the necessary computer skills from a colleague, Judy Mendonca, a White woman who had also trained for the position. Mendonca reported to Du Pont management that she was uncomfortable with Pettus’s inquiries, and he was subsequently instructed not to speak to her for any reason. Pettus believed Ms. Mendonca’s unwillingness to help him was motivated by racism. After the incident, he had stress reactions upon seeing her at work that caused him to get headaches and to become angry to the point where he sometimes felt like striking her.

C. Pettus’s Initial Requests for Time off of Work.

At a routine company physical examination on May 5, 1988, Pettus complained of his stress and skin rash to Dr. Carol Collins, a physician under contract with Du Pont to provide medical evaluation, physicals and treatment for Du Pont employees. Dr. Collins recommended that Pettus see a specialist dealing in stress conditions.

Soon thereafter, on or around May 24, 1988, Pettus sought stress counseling at the Sierra Clinic. On June 2, at the suggestion of a Sierra Clinic doctor, Pettus called his supervisor, Bill Taylor, to ask for a 90-day leave. Taylor told him he could not have a 90-day leave without the concurrence of a Du Pont physician in accordance with the company policy regarding requests for disability benefits. However, Bob Rotter, the division manager at the Hayward plant, became concerned about stress levels in the warehouse and worried that other employees might be experiencing problems similar to Pettus’s.^[6] Accordingly, Rotter asked Dr. Collins to arrange an appointment for Pettus with Dr. Dominick Fisichella, a dermatologist, in order to determine the cause of Pettus’s skin rash. Dr. Fisichella examined appellant on

On June 6, 1988, Pettus met with Rotter in his office. During that meeting, Pettus told Rotter that the stress he was suffering stemmed from the Flint incident and that he was angry at “members of management,” a group in which Rotter believed himself to be included, and that the mere sight of Du Pont products could trigger his anger.^[7] Pettus also told Rotter he felt anger toward Judy Mendonca, such that “he could hit her.”^[8]

On June 10,1988, Dr. Ephrom of the Sierra Clinic wrote a letter to Taylor recommending that Pettus be given a 90-day leave of absence due to stress. Dr. Ephrom asserted that Pettus was suffering from an adjustment disorder that had been “brought on by a chronic job stress situation.” Taylor told appellant he would forward the request for disability leave to Rotter. Rotter denied appellant’s request for disability leave. According to Pettus, Rotter denied the request because he “didn’t see anything on the job that was causing me to have any problems.”

Pettus continued to work, but his stress and its physical manifestations persisted. He again sought medical treatment from his personal physician, Dr. Coleman. Dr. Coleman found that appellant’s blood pressure was elevated and also detected a slight heart murmur. On June 14, 1988, he wrote a letter recommending that Pettus “remain off work for the next thirty days . . . because of his medical condition.” Pettus submitted this letter to Taylor, who denied the request for leave because Dr. Coleman was not Du Font’s doctor.

Pettus was instructed to see the company physician, Dr. Collins, on June 16, 1988, to have his request for disability leave evaluated. Dr. Collins performed a repeat physical exam and also discussed with appellant some of his personal stresses and his difficulty sleeping. Dr. Collins reported her conclusions in a June 17, 1988, letter to Rotter, her sole contact at Du Pont. In that letter, Dr. Collins noted appellant’s elevated blood pressure, heart murmur and rash, and concluded that these physical problems would not prevent him from performing his job.^[9] Nevertheless, she recommended that Pettus not return to work because of the high level of mental stress he was

Dr. Collins suggested to Rotter that appellant consult with Dr. Cole to obtain a psychiatric evaluation. Dr. Collins set up an appointment with Dr. Cole for Pettus. She wrote Dr. Cole a letter informing him that Pettus was a Du Pont employee being referred by the company for psychiatric assessment in connection with a “disability case” he had “filed against the company.” For background information, Dr. Collins also forwarded to Dr. Cole her June 17, 1988, letter to Rotter, in which she had reported her findings from the June 16, 1988, physical examination.

D. Pettus’s Consultation With Dr. Cole.

Rotter informed Pettus of the appointment with Dr. Cole, which was scheduled for June 23, 1988. Pettus believed this appointment was necessary to secure disability leave. He understood that the purpose of the visit was to verify the physical and emotional problems he was having in order to qualify for disability leave under the company policy. Pettus knew the visit was not entirely confidential. He understood that Dr. Cole would report back to Du Pont a conclusion about whether his stress condition warranted disability

During the examination, Pettus disclosed detailed information about his family history; his drinking habits in Flint; the incidents in Flint and in Hayward where he felt he was the victim of racial discrimination; his belief that Du Pont and its management were racist; his thoughts that he was beginning not to like White people, and that this bothered him; and his reoccurring skin rash.

Approximately an hour after the examination, Dr. Cole spoke with Rotter on the telephone and discussed the contents of his interview of Pettus. Dr. Cole discussed in detail appellant’s medical and emotional condition, telling Rotter that he thought appellant had an alcohol problem, that this could potentially be his most serious problem, and that appellant had a great deal of frustration and emotional difficulty. Dr. Cole opined that Pettus was disabled by work-related stress, and recommended that Pettus be given leave. Prior to this phone conversation, Dr. Cole had had no direct contact with anyone connected to Du Pont. At the time of the call he was not aware of Rotter’s position at Du Pont or of his relationship to Pettus, that of a second-line supervisor.

On June 23, 1988, Dr. Cole prepared a written report about his examination of Pettus, which was addressed to Rotter with a copy to Dr. Collins. Dr. Cole’s report contained details of Pettus’s work and family history, his drinking habits, his problems in Flint, and his thoughts of violence towards Ms. Mendonca, as well as his current psychiatric symptoms. More specifically, Dr. Cole reported that Pettus was “extremely angry, particularly at one of his coworkers, and [was] having a hard time controlling these feelings.” Dr. Cole reported Pettus’s comments about Judy Mendonca, as follows: . . Every time I see her in particular, I get awful, awful upset.’ . . . ‘That’s where the headaches come from. When I see her in the office, I look at her and just get angry. Du [P]ont has never been fair with minorities. I have been able to cope with racism all my life. I’ve begun to dislike white people, which is bothering me. I guess it’s just harder to cope with it now that I’m getting older.’ ” Dr. Cole also reported Pettus’s statement that he began “drinking excessively” three months before he was discharged from

In his written report, Dr. Cole concluded that appellant was genuinely disabled, and that it would not be in appellant’s best interests to return to work. Accordingly, on June 24,1988, Rotter called Pettus at home to inform him that Du Pont was granting him a 90-day disability leave. Dr. Cole further concluded that there was a “distinct possibility” that Pettus was suffering from “a primary alcohol problem.” Thus, Dr. Cole recommended that appellant be examined by a specialist in substance abuse cases. Following this suggestion, Dr. Collins referred Rotter to Dr. Unger, a psychiatrist with expertise in chemical dependency. Rotter arranged for Dr. Unger to meet with Pettus on July 6, 1988.

E. Pettus’s Consultation With Dr. Unger.

About a week before appellant’s appointment with Dr. Unger, Rotter sent a cover letter to Dr. Unger along with Pettus’s medical file, which contained the reports from Drs. Collins and Cole. In the letter, Rotter informed Dr. Unger that he had told Pettus of the appointment and that Pettus “appeared willing and cooperative.” Rotter also specifically requested that Dr. Unger: (1) determine Pettus’s mental condition and whether it would affect his ability to perform his duties as a warehouseman; (2) determine how deeply rooted his feelings of anger toward his fellow employees were; (3) determine whether he had an alcohol and/or other substance abuse problem, and, if so, how it affected his working relationships in Hayward; and (4) make recommendations for further treatment and how to proceed. In addition to the letter, Rotter communicated with Dr. Unger prior to Pettus’s evaluation in a telephone call he placed to set up the appointment. In that conversation, Rotter told Dr. Unger that there was an urgent need for the interview to take place as soon as possible because he was concerned about the potential for Pettus to commit some violent act as a result of his hostile feeling toward Du Pont and Judy Mendonca.

Dr. Unger met with Pettus on July 6, 1988. Pettus testified that the meeting lasted no more than 30 minutes. Dr. Unger maintained it was about two hours long. Pettus understood the purpose of the interview with Dr.

Based on her discussion with appellant, the reports of Drs. Collins and Cole, and a telephone conversation prior to the meeting with Rotter, Dr. Unger prepared a written report addressed to Rotter, which contained information about appellant’s family and work histories, his drinking habits, and his emotional condition. Specifically, Dr. Unger reported that Pettus suffered from deep-rooted and long-standing anger toward Du Pont, and was currently stressed beyond his ability to cope. She did not diagnose Pettus to be an alcoholic, but concluded that he was “using alcohol adversely,” and that his use of alcohol was having an impact on his emotional problems and his life generally. In answer to Rotter’s fear that Pettus might physically harm someone, Dr. Unger reported that appellant’s anger had recently focused on Ms. Mendonca, but that he was not a threat to anyone in the workplace.^[14] Dr. Unger explained that Pettus’s hostile feelings were normal and could even be therapeutic.^[15]

The first of her nine recommendations, which were listed in order of importance, was that appellant abstain for three months from alcohol use, a suggestion which appellant had come up with on his own and was willing to try. The last was that Pettus be terminated by Du Pont. Dr. Unger’s other recommendations included experimenting with different medication, and establishing an exercise and nutritional program oriented toward weight loss.

F. Termination of Pettus’s Employment With Du Pont.

The written reports of Drs. Collins, Cole and Unger were sent to Joseph Montovino, Du Pont employee relations manager in Wilmington, Delaware. Mr. Montovino’s task was to coordinate a review of Pettus’s situation with Du Font’s medical and substance abuse groups. To that end, Mr. Montovino forwarded the reports to Dr. Alan J. Hay of Du Font’s corporate medical department, and to Walter Beam,^[16] the director of Du Font’s substance abuse program for its 140,000 employees worldwide. Based on their review of the reports and consultations between themselves and with Dr. Hay, Mr. Montovino and Dr. Beam decided that Pettus would be required to enter a 30-day, inpatient alcohol treatment program as a condition to his return to work.^[17] It was Dr. Beam’s opinion that such a program would provide the best chance for Pettus to return to work.

On August 1, 1988, Montovino and Rotter met with appellant to discuss his future with the company. Also in attendance at that meeting was Stephen Howard, regional manager for Du Pont. Pettus was told that in order to continue his employment with Du Pont, he would be required to enroll in an inpatient alcohol treatment program, possibly followed by a psychiatric program.^[18] If he was unwilling to attend such a program, then he had the alternatives of resigning and taking early permanent retirement, or seeking a

Disclosure is also permissible to a group practice plan for the purpose of administering the group practice plan (§56.10, subd. (c)(10)); to insurance agents in compliance with certain Insurance Code provisions (id., subd. (c)(ll)); to a probate court investigator under certain circumstances (id., subd. (c)(12)); to a tissue bank, under specified circumstances (id., subd. (c)(13)); and when the disclosure is “otherwise specifically authorized by law” (id., subd. (c)(14)).

Most of these permissive disclosure exceptions can be easily eliminated as inapplicable to the fact situation here. Respondents Unger and Cole argue that section 56.10, subdivision (c)(8)(A) and (9) both apply, and that the disclosures made in this case were permitted under both subparagraphs. Appellant argues that subdivision (c)(8)(B) is the applicable provision and that the disclosures were not protected under it. Adhering to the fundamental canon of statutory interpretation to “give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 , 1159 [ 278 Cal.Rptr. 614 , 805 P.2d 873 ]), we read each exception listed in subdivision (c)(1) through (14) in pari materia. Doing so, we conclude that subdivision (c)(8)(B) is the provision most apposite to the facts at hand and that it therefore governs this case. We further conclude that the disclosures made by Drs. Unger and Cole exceeded the parameters established in subdivision (c)(8)(B), which limit the permissible disclosure to a description of any “functional limitations” and explicitly prohibit disclosure of “medical cause” of the limitation.^[19]

2. Pettus was a “Patient” of Drs. Cole and Unger for Purposes of the CMIA.

Before turning to the merits of appellant’s claim under the CMIA, we must dispose of Dr. Cole’s threshold argument that Pettus is not protected by section 56.10 because he does not qualify as a “patient” within the

Dr. Cole contends that no health care services were provided to or received by Pettus, and that, therefore, he was not a “patient” under section 56.10. In support of this contention Dr. Cole claims that the psychiatric evaluation he performed was for the sole purpose of advising Pettus’s employer of his findings with respect to appellant’s disability claim, not to advise Pettus. Though his report made explicit recommendations for treatment, he argues these recommendations were generated for Du Font’s information. He further contends that Pettus was not a “patient” because he saw Pettus on a single occasion, no care or treatment was contemplated, and no doctor/patient relationship existed between them.

When the definition of patient is construed in relation to the other statutory definitions and in view of the statute’s purpose, respondent Cole’s position is patently untenable. It is undisputed that Dr. Cole’s meeting with Pettus generated highly sensitive medical information which was subsequently reported to Du Pont. According to statutory definitions, “medical information” is information “derived from a provider of health care" and a patient is someone who has received health care services from a provider of health care and to whom medical information pertains. (§ 56.05, subds. (b), (c).) Unfortunately, the term “health care services” is not defined by the Act. However, logic dictates that in order for a health care provider to gather medical information about a person, the provider must have dealt with the person at some level and performed professional services of some type. By failing to include the term “health care services” in the list of definitions, the drafters failed to define the precise level of interaction between the provider and the subject necessary to constitute “health care services.” It is, however, appropriate to construe the term in a manner which effectuates the purpose of the statute. (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p.

3. Section 56.10, subdivision (c)(8)(B) Governs the Type of Disclosure at Issue in This Case.

It is not clear from either the trial court’s reasons for decision or its comments at trial under which portion of section 56.10 the court rejected Pettus’s CMIA claim against Drs. Cole and Unger. In granting the nonsuit to the psychiatrists, the court concluded that Du Pont was entitled to “full and complete information,” stating: “It is the court’s opinion that doctors Unger and Cole both gave a report fully within the authorization of section 56.10, that there was nothing inappropriate, that the employer was indeed entitled to secure full and complete information. That was what they were doing. [cJfl First they sent him to a general doctor, and the general doctor said it has got some psychiatric overlay and underlay. [*]Q And the psychiatrist said I can’t tell if it is engendered from ingestion of a substance, whether overuse of sugar, or thyroid, or something else, or alcohol, or whether it is purely a psychiatric chemical problem within the mind. I don’t know. I think you need to talk to somebody that specializes in that area. [U And they did. And the doctor responded to the questions. [‘JQ I’m going to grant the non-suit as to the doctors.” When plaintiff’s counsel asked the court to clarify whether it made “a specific ruling on what exception to section 56.10[, subdivision] (a) applied,” the court replied, “No. 56.10. I’m not going to go further than that.”

In its reasons for decision, the trial court utterly failed to deal with the specific terms of the statute.^[22] The court prefaced its short discussion about the disclosure with its conclusion that Du Pont had the right to request and

The fact that Du Pont may be “entitled to employ its own expert” to examine an employee under certain circumstances^[23] does not, contrary to the trial court’s holding, entitle it to a “full report of the expert’s findings and recommendations” when determining an employee’s eligibility for disability leave. Because the employer arranged and paid for the medical examination does not abrogate the employee’s right to confidentiality of the information generated by the examination. This interpretation would nullify the Legislature’s attempt to protect employee medical information under section 56.10, subdivision (c)(8)(B), and we decline to adopt it.

The language employed in section 56.10, subdivision (c)(8)(B), specifically restricts permissible disclosure to an employer to a description of the “functional limitations” of the employee who has been examined. The disclosures made by Drs. Cole and Unger to Du Pont describing in detail Pettus’s hostility toward the company and a coworker, his drinking habits and other details about his personal life go well beyond a description of “functional limitations.” The stated purpose of the CMIA, as amended, is “to provide for the confidentiality of individually identifiable medical information, while permitting certain reasonable and limited uses of that information.” (Stats. 1981, ch. 782, § 1, p. 3040.) By enacting section 56.10, subdivision (c)(8)(B), the Legislature has determined that the unauthorized disclosure to employers of further detailed medical information about employees is not a reasonable use of that information.

There are, of course, good policy reasons for such a conclusion. If a health care professional were free to give an employer all the details of an employee’s personal life and physical and mental health as revealed during a disability evaluation, there would be a great disincentive to full and honest disclosure by the employee. Indeed, in many cases of psychological disability, there would be a strong disincentive to the employee to seek professional help at all. Neither employees nor employers would be well served by such a rule. Employers would not get an accurate evaluation of their employees’ ability to work (and entitlement to medical leave), employees would not get the benefit of a candid health assessment by the examiner, and employees would in some cases not get the health care they need to be productive

4. Section 56.10, subdivision (c)(8)(A), Is Inapplicable to a Dispute Over an Employee’s Entitlement to Medical Leave.

We turn next to respondents’ argument that the dispute over Pettus’s request for disability leave was a “law suit, arbitration, grievance or other claim or challenge,” i.e., a “proceeding” to which Du Pont and Pettus were “parties,” within the meaning of section 56.10, subdivision (c)(8)(A). The facts of this case do not support a finding to that effect. Pettus requested leave from work because he believed he was suffering a stress-related disability. He was instructed that, under company policy, his disability had to be verified in a medical examination paid for and arranged by Du Pont before leave would be granted. Pettus complied with company procedure without objection, and submitted to three medical examinations as instructed, including the physical examination performed by Dr. Collins and two psychiatric examinations, the first conducted by Dr. Cole, the second by Dr. Unger. When Pettus submitted to medical examinations to have his disability validated, there was no “proceeding” as contemplated by subdivision (c)(8)(A). Nor were Pettus and Du Pont at that point two “parties” presenting opposing versions of a situation over which they disagreed to a neutral decision maker in such a “proceeding.”^[24]

There is a more fundamental reason why section 56.10, subdivision (c)(8)(A) cannot be held to apply to an in-house dispute over an employee’s entitlement to medical leave under an established employer policy providing for same. It is an established tenet of statutory construction that separate items in a statute should be given meaning with reference to the whole, and that each word and phrase in the statute should be interpreted “to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose.” (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p. 1159.) Even more to the point, “ ‘It is well settled . . . that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to

C. Section 47, Subdivisions (b)(2) and (c), Are Inapplicable to Claims for Violation of the CMIA.

Respondent Cole also contends his communications to Du Pont are privileged under section 47, subdivision (b)(2) (hereinafter section 47(b)(2)), and section 47, subdivision (c) (hereinafter section 47(c)). However, these provisions are inapplicable in the circumstances of this case.

Section 47(b)(2) is described in Silberg v. Anderson (1990) 50 Cal.3d 205 [ 266 Cal.Rptr. 638 , 786 P.2d 365 ] as being similar to the common law

D. Pettus Made a Prima Facie Showing That the Disclosure of Detailed Medical Information by Drs. Cole and Unger Also Violated His Right to Privacy Under Article I, Section 1 of the California Constitution.

Having concluded that the disclosure of detailed medical information by Drs. Cole and Unger to Pettus’s employer violated his rights under the CMIA, we must decide whether Pettus has established that this conduct also constitutes a violation of his state constitutional right of privacy. Under standards enunciated by our Supreme Court while this matter was pending on appeal, the application of which has been fully briefed and argued by the parties, we conclude that Pettus, upon completion of his case-in-chief, made a prima facie showing of invasion of his constitutional right of privacy. However, based on evidence presented by Du Pont in its defense case, there is a serious question whether Pettus waived any constitutional claim against Drs. Cole and Unger by voluntarily disclosing to his supervisors at Du Pont much of the sensitive personal information that was subsequently transmitted in the psychiatrists’ reports. The trial court did not have that evidenc'p before it when it decided the respondent psychiatrists’ motion for judgment pursuant to section 631.8, and neither the psychiatrists nor Pettus had an

“The existence of a sufficient countervailing interest or an alternative course of conduct present threshold questions of law for the court. The relative strength of countervailing interests and the feasibility of alternatives present mixed questions of law and fact. Again, in cases where material facts are undisputed, adjudication as a matter of law may be appropriate.” (Hill, supra, 7 Cal.4th at p. 40.) We will briefly discuss each of the elements of Pettus’s claim against Drs. Cole and Unger for invasion of his constitutional right of privacy, and the matters of defense that were raised in the trial court.

2. Pettus Established a Legally Cognizable Interest in Preserving the Privacy of His Medical History and Psychological Profile.

“Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).” (Hill, supra, 1 Cal.4th at p. 35.)

We have no doubt, and determine as a matter of law, that Pettus had a legally cognizable interest in maintaining the privacy of the detailed medical information he conveyed to Drs. Cole and Unger. (13b) “Informational privacy is the core value furthered by the Privacy Initiative” (Hill, supra, 7 Cal.4th at p. 35), and it is well settled that the zone of privacy created by that provision extends to the details of a patient’s medical and psychiatric history (Cutter v. Brownbridge (1986) 183 Cal.App.3d 836 , 842 [ 228 Cal.Rptr. 545 ]; Wood v. Superior Court (1985) 166 Cal.App.3d 1138 , 1147 [ 212 Cal.Rptr. 811 ]). As the Cutter court explained, “The right to control circulation of personal information is fundamental. [Citations.] This right reaches beyond the interests protected by the common law right of privacy, and may be protected from infringement by either the state or by any individual. [Citation.] The ‘zones of privacy’ created by article I, section 1, extend to the details of one’s medical history. [Citation.] And, an individual’s right to privacy encompasses not only the state of his mind, but also his

There is no reason in law or policy why an employer should be allowed access to detailed family or medical histories of its employees, or to the

4. Evidence Presented During the Plaintiffs Case-in-chief Established That the Disclosures by Drs. Cole and Unger Seriously Interfered With Pettus’s Informational Privacy Rights.

The final element of Pettus’s prima facie case of invasion of privacy is the seriousness of the intrusion: “Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill, supra, 1 Cal.4th at p. 37.) The impact on the claimant’s privacy rights must be more than “slight or trivial.” (Ibid.) In this case, based on the evidence presented in his case-in-chief, Pettus established that the revelation of at

Drs. Cole and Unger knew that they were sharing detailed personal and medical information about Pettus with his employer. They did not necessarily know the use(s) to which Du Pont might put the information. But they can fairly be charged with knowing that the information they were disclosing was of a type that could prove to be highly embarrassing to Pettus, and/or disruptive of his relationship with his employer. According to Pettus, the disclosures caused great damage both to his self-concept and to his professional image in the eyes of his employer. In these circumstances, we conclude Pettus adequately established that the intrusion into his right of informational privacy was sufficiently serious as to establish the third element for a violation of article I, section 1 of the California Constitution.

5. No Adequate Justification Has Been Established for the Invasion of Pettus’s Privacy Interests and He Has Shown That Equally Effective, but Less Intrusive, Alternatives Were Available to Serve Du Pont’s and the Psychiatrists’ Competing Interests.

We turn next to an examination of the countervailing interests asserted by Drs. Cole and Unger to justify the invasion of Pettus’s privacy, and determine whether Pettus has shown that there were equally effective, less intrusive means to serve those interests. (Hill, supra, 1 Cal.4th at p. 40.) Essentially, Drs. Cole and Unger explain that they gave Du Pont a full, detailed psychiatric report because that is what employers expect to receive when they retain a psychiatrist to evaluate an employee for disability leave.^[32] Respondents further assert that Du Pont “needed” the detailed report in order to evaluate Pettus’s request for disability leave, and to formulate a plan for

If employers expected to receive detailed medical information in order to process medical leave requests before the enactment of the CMIA in 1981, those expectations should have been altered when subdivision (c)(8)(B) was added to section 56.10 by the 1981 amendments. Physicians who previously honored those pre-CMIA expectations should also have adjusted their understanding of the balance between employers’ business interests and employees’ privacy rights in that context.

As to the employers’ asserted “need” for detailed medical information about their employees, we recognize that employers have important and legitimate interests in maintaining an efficient and productive work force. Employers also have substantial latitude in regulating their employees’ on-the-job conduct and working relationships. They are, thus, entitled to notice when an employee cannot perform some or all of the essential job functions assigned to that employee and, if the employee hopes to avail himself of paid leave benefits, to such information as is necessary to make an evenhanded decision about the employee’s eligibility for such leave. But again, a medical opinion by an employer-aligned physician as to the existence of “functional limitations,” and as to the “industrial versus nonindustrial” nature of the injury, is what the employer “needs” to know to make that eligibility determination. However, contrary to the respondents’ argument, employers do not have a cognizable interest in dictating a course of medical treatment for employees who suffer nonindustrial injuries.^[33] That is a matter for the employees to decide, in consultation with their own health care providers—medical professionals who have their patients’ best interests at heart.^[34]

Dr. Unger further contends that Du Pont had a legitimate interest in assessing Pettus’s potential for violence, especially toward Judy Mendonca. While quite plausible on its face, this argument is too simplistic and sweeping in its implications. It is, of course, true that employers have a legitimate—indeed compelling—interest in maintaining a safe working environment for their employees. It is another matter altogether to say that an employer can require an employee to submit to examination by an employer-aligned psychiatrist whenever it learns that an employee is angry and

In sum, based on the evidence presented in Pettus’s case-in-chief, we hold that the disclosures by Drs. Cole and Unger of detailed medical and psychiatric information about Pettus to his direct supervisors were a serious violation of Pettus’s reasonable expectations that the psychiatrists would maintain the confidentiality of such highly sensitive information. We further conclude that the justifications offered by respondents do not outweigh Pettus’s informational privacy interests, and that there were less intrusive alternatives to full disclosure that would have equally well served the

A

. Standard of Review.

As before, in reviewing questions of fact decided by the trial court the substantial evidence rule applies. (Rodriguez v. North American Rockwell Corp., supra, 28 Cal.App.3d at p. 447 [appellate court must view the evidence most favorably to the respondents and uphold the judgment if there is any substantial evidence to support it].) However, to the extent we are called on to review conclusions of law based on undisputed facts, we are not bound by the trial court’s decision and are free to draw our own conclusions of law. (Torrey Pines Bank v. Hoffman, supra, 231 Cal.App.3d at p. 317.)

It is undisputed that Pettus never came to work under the influence of alcohol, never imbibed alcohol before or during work, and never exhibited any behavior that indicated to Du Pont managers that he had a drinking problem. In 22 years of employment with Du Pont, no one had ever told appellant he might have an alcohol abuse problem. Du Font’s conclusion that appellant needed alcohol rehabilitation was based solely on information derived from the reports of the psychiatrists it retained to evaluate Pettus’s request for disability leave, i.e., Drs. Cole and Unger.

It is also undisputed that Pettus never threatened or physically harmed anyone at Du Pont in his 22 years of service with the company, and that Dr. Unger—the psychiatrist who was specifically asked to evaluate Pettus for this purpose—did not believe he posed a danger to anyone inside or outside

B. Du Pont’s Use of Confidential Medical Information in Its Possession as Grounds for Terminating Pettus’s Employment Was a Violation of Section 56.20.

We begin with an examination of Pettus’s claim that Du Pont violated the CMIA—more specifically, the provisions relating to use and disclosure of medical information by employers (§ 56.20 et seq.)—by misusing information it obtained from Drs. Cole and Unger to terminate his employment. In relevant part, section 56.20, subdivision (c) provides; “No employer shall use, disclose, or knowingly permit its employees or agents to use or disclose medical information which the employer possesses pertaining to its employees without the patient having first signed an authorization under Section 56.11 ... , except as follows; ...[*][] (2) That part of the information which is relevant in a lawsuit, arbitration, grievance, or other claim or challenge to which the employer and employee are parties and in which the patient has placed in issue his or her medical history, mental or physical condition, or treatment may be used or disclosed in connection with that proceeding. (3) The information may be used only for the purpose of administering and maintaining employee benefit plans, including health care plans and plans providing short-term and long-term disability income, workers’ compensation^] and for determining eligibility for paid and unpaid leave from work for medical reasons.” (Italics added.)

As before, it is undisputed that none of the health care providers involved in this case obtained a written authorization from Pettus for disclosure of their detailed psychiatric evaluations to Du Pont. Thus, Du Pont may be held liable for a violation of section 56.20, subdivision (c), if it used the medical information contained in those reports to Pettus’s detriment, unless that “use” falls within one of the two above quoted exceptions to section 56.20.

C. Discharging Pettus for His Refusal to Participate in an Employer-mandated Course of Medical Treatment Was a Violation of His State Constitutional Right to Privacy.

The trial court concluded that Du Pont was justified in discharging Pettus because he refused to enroll in an inpatient alcohol treatment program as directed by his employer as a condition of continued employment, and that Du Pont was not liable for either invasion of privacy or wrongful termination in violation of the public policy embodied in the privacy clause. It is these tort claims—one arising from the California Constitution, the other from common law—that are at the heart of Pettus’s appeal from the judgment in favor of Du Pont.^[39]

1. An Overview of California Wrongful Termination and Workplace Privacy Law.

There has been a great deal of confusion about the role of the California constitutional right to privacy in the private workplace, especially

Of the existing wrongful termination cases, Semore and Luck, both supra, are most closely on point for purposes of evaluating Pettus’s claim that he was discharged in violation of public policy. Like Pettus, the plaintiffs in

Even more importantly, however, Pettus had an “autonomy privacy” interest in making intimate personal decisions about an appropriate course of medical treatment for his disabling stress condition, without undue intrusion or interference from his employer. (See Hill, supra, 1 Cal.4th at pp. 28-31, 35-36; Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303 , 1317-1318 [ 271 Cal.Rptr. 199 ] [right of competent adult to refuse medical treatment is grounded in both the common law and the state constitutional right of privacy]; cf. Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261 , 270 [ 111 L.Ed.2d 224 , 236-237, 110 S.Ct. 2841 ] [right to refuse medical treatment analyzed as 14th Amendment liberty interest]; see also Conservatorship of Drabick (1988) 200 Cal.App.3d 185 , 208 [ 245 Cal.Rptr. 840 ]; Keyhea v. Rushen (1986) 178 Cal.App.3d 526 , 540 [ 223 Cal.Rptr. 746 ]; Bartling v. Superior Court (1984) 163 Cal.App.3d 186 , 195 [ 209 Cal.Rptr. 220 ]; Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127 , 1137 [ 225 Cal.Rptr. 297 ].) This “autonomy privacy” interest is at the heart of Pettus’s privacy claim against Du Pont, and is plainly sufficient to satisfy the first element of his cause of action for violation of his constitutional right of privacy.

3. Reasonable Expectation of Privacy.

We turn next to the question whether Pettus’s expectations that Du Pont would honor the identified informational and autonomy privacy interests were reasonable in the circumstances of this case. As we have already discussed, it is reasonable for an employee to expect that details of his personal life and thoughts, communicated in confidence to a psychiatrist, will be shielded against scrutiny by his employer. Given section 56.10, subdivision (c)(8)(B), this is true notwithstanding the fact that the employee has placed his mental condition in issue by requesting paid leave for medical

These Labor Code provisions may reasonably be construed as declarations of legislative policy that an employee’s decision to participate in alcohol or drug rehabilitation implicates serious privacy concerns of both the informational and autonomy varieties. That is, the fact of participation in an alcohol or drug treatment program is deemed “private” information which must be treated with sensitivity by employers, and the decision to enter such a program is one entrusted to the employee, to be made “voluntarily,” without employer coercion or interference. Indeed, far from being permitted to interfere, the employer has affirmative duties to facilitate the employee’s decision to enter alcohol or drug treatment once the employee chooses that course of action. (Lab. Code, § 1025.) Thus, taken as a whole, section 1025 et seq. of the Labor Code may be viewed as a legislatively imposed limit on covered employers’ prerogatives with respect to alcohol rehabilitation for their employees, and as a clear statement of the “social norms” applicable in the employment setting with respect to employer involvement—or, rather, noninvolvement—in the very private matter of employee drug and alcohol rehabilitation. Any other interpretation would violate the settled rules of statutory interpretation that a court “must. . . accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,” and that “[a] construction making some words surplusage is to be avoided.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 , 1387 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ].)^[43]

4. Seriousness of the Intrusion.

The third element of Pettus’s prima facie case of invasion of privacy is the seriousness of the intrusion or interference by Du Pont with his identified privacy interests. We have already discussed at length how the disclosure of Pettus’s private medical information by Drs. Cole and Unger may have seriously undermined his self-concept and image as a “responsible employee,” and disrupted his employment relationship with Du Pont. (See Hill, supra, 7 Cal.4th at pp. 25, 37; Briscoe v. Reader’s Digest Association, Inc., supra, 4 Cal.3d at p. 534.) That intrusion was greatly compounded when Messrs. Rotter and Montovino used information from the psychiatrists’ reports to impose a new and extremely onerous condition on Pettus’s

5. Countervailing Interests and Less Intrusive Alternatives.

Finally, we must examine the countervailing interests asserted by Du Pont to justify the invasion of Pettus’s informational and autonomy privacy rights, and determine whether Pettus has shown there were equally effective, less intrusive means to serve those interests. But in evaluating these countervailing interests, we apply a more stringent test to determine whether Du Font’s interference with Pettus’s autonomy privacy interests was justified: “Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the vital privacy interest.” (Hill, supra, 1 Cal.4th at p. 34; see also id. at pp. 59 (cone, and dis. opn. of Kennard, J.), (cone, and dis. opn. of George, J.), 73 (dis. opn. of Mosk, J.).) Du Pont has established no such compelling interest.

We have already rejected the argument that the psychiatrists’ disclosure to Du Pont of Pettus’s private medical information was “necessary” to a evaluate Pettus’s request for disability leave. (See ante, pt II.D.4.) Du Pont would have had all the information it needed to verify Pettus’s disability, and to respond to Pettus’s expressions of anger toward Du Pont and Judy Mendonca, if it had simply asked its retained psychiatrists to evaluate Pettus’s disability claim and received the narrow disclosure authorized by sections 56.10, 56.20, and Tarasoff, supra, 17 Cal.3d 425 .

As to Pettus’s claim of interference with his autonomy privacy interests, Du Pont offers no particular justification for requiring Pettus to enroll in the alcohol treatment program. It simply avers that it did not “force” Pettus to accept medical treatment. This contention is belied by the record of Mr. Montovino’s trial testimony. The two “options” Du Pont offered if Pettus

For all the foregoing reasons, the judgments of the trial court are reversed and the causes remanded for further proceedings consistent with this opinion. Costs to appellant.

Kline, P. J., and Hitchens, J.,^[47] concurred.

Petitions for a rehearing were denied October 15, 1996, and the opinion was modified to read as printed above. The petitions of all respondents for review by the Supreme Court were denied December 23, 1996. Baxter, J., was of the opinion that the petitions should be granted.