Before Pittman, P.j., McRAE And Roberts, JJ.
The opinion of the court was delivered by: Roberts, Justice, For The Court:
DATE OF JUDGMENT: 02/19/96
TRIAL JUDGE: HON. JERRY OWEN TERRY SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
MOTION FOR REHEARING FILED:
¶1. This appeal comes before this Court from the Circuit Court of Harrison County, Mississippi, Honorable Jerry Terry, Sr., presiding. The case involves the dismissal of Shirley and Lloyd Earl Tinnon's medical malpractice claim, filed June 13, 1994, against William L. Striegal, M.D., J. Holtz, CRNA, James Corder, M.D., Frank G. Martin, M.D., Surgical Clinic of Biloxi, P.A., Ocean Springs Hospital, and Does 1 through 5 (all referred hereinafter as Defendants). The allegations in the suit arose from the treatment received by Lloyd Tinnon while he was a patient at Ocean Springs Hospital in March, 1993.
¶2. Dr. Martin filed a Motion to Compel Waiver of the Medical Privilege and Permit Ex Parte Conferences with Treating Physicians. The lower court entered an order allowing ex parte conferences on June 16, 1995, waiving the privilege only as to relevant information, relying on Miss. Code Ann. § 13-1-21(4). The order provided that disclosure should not be limited by the patient or his attorney as to time, place or method of disclosure and that any attempt to do so would be in violation of the order.
¶3. Subsequent to the entry of this order, Tinnon's counsel wrote a letter on July 6, 1995, to Dr. Gary, who had treated Tinnon during his stay at Ocean Springs Hospital. The letter enclosed a copy of the complaint, the lower court order, and an outline of what Tinnon's counsel saw as the doctor's options in disclosing information to the defense. The letter recommended to the doctor that he might want to obtain legal advice and reminded him that the medical privilege applied to any non-relevant information the doctor might possess.
¶4. After receiving the letter from Tinnon's counsel, Dr. Gary refused to talk to any defense attorneys without Tinnon's counsel being present or except pursuant to a deposition where all the parties would be present. The named defendants filed a motion for contempt for violation of the previous court order waiving Tinnon's medical privilege. At the contempt hearing, Tinnon's counsel admitted to sending the letter but denied that it violated the court order. On February 19, 1996, Judge Terry entered a judgment of dismissal under M.R.C.P. 37(b)(2)(C), finding that the letter was in direct contempt of the court's order. This appeal followed.
¶5. On April 18, 1996, this Court handed down its opinion in Scott v. Flynt, 704 So.2d 998 (Miss. 1996). Tinnon filed a M.R.C.P. 60(b) motion on April 22, 1996, asking the lower court to reconsider its decision to dismiss the suit. However, a hearing on the motion was postponed pending this Court's ruling on the motion for rehearing in Scott v. Flynt. This Court denied the motion for rehearing in Scott v. Flynt on December 8, 1997.
¶6. Tinnon has raised two issues on appeal for this Court to consider. Because of the posture of his claims on appeal, they are restated as follows:
I. WHETHER TINNON IS PRECLUDED FROM COLLATERALLY ATTACKING THE LOWER COURT'S ORDER SUBSEQUENT TO THE ALLEGED VIOLATION OF THE ORDER.
II. WHETHER THE LOWER COURT PROPERLY FOUND WITHIN THE SCOPE OF ITS DISCRETION THE LETTER TO BE A VIOLATION OF THE COURT ORDER SO AS TO APPLY THE SANCTION OF DISMISSAL.
¶7. Although they did not cross-appeal, the Defendants have raised an additional issue regarding the constitutionality of M.R.E. 503(f) and the Court's ruling in Scott v. Flynt.
III. WHETHER M.R.E. 503(f) IS VIOLATIVE OF THE DEFENDANTS' CONSTITUTIONAL RIGHTS.
¶8. We find that the lower court should not have imposed the ultimate sanction of dismissal in the case sub judice, as the letter was not a violation of the court's order. The learned trial Judge made the decision he thought best at the time, but review and subsequent events reflect a new perspective on this issue.
¶9. Therefore, we reverse and remand for a new trial. Because M.R.E. 503(f) does not violate the Defendants' constitutional rights, all further proceedings should be in accordance with this Court's decision in Scott v. Flynt, 704 So.2d 998 (Miss. 1996).
¶10. Lloyd and Shirley Tinnon filed this malpractice action on June 13, 1994, alleging Mr. Tinnon aspirated vomit into his lungs during the induction of anesthesia and/or during surgery due to the failure of the physicians, anesthesiologist, CRNA and hospital employees to meet the required standard of care pre-operatively in a patient suffering from a small bowel obstruction, to prevent aspiration. The defendants timely answered the complaint.
¶11. On April 5, 1995, Dr. Martin filed a Motion to Compel Waiver of Medical Privilege Permitting Ex Parte Conferences with Treating Physicians. The court was asked to adjudicate the privilege, if any, waived between Tinnon and all medical providers and permitting medical providers to fully disclose to the defendant or his counsel, and to freely discuss with them, all information which they possess about the medical condition of Tinnon. Tinnon responded that the waiver under M.R.E. 503 permitted disclosure of relevant information but opposed the waiver and allowed ex parte communication. Tinnon argued that ex parte conferences could irreparably harm his case by allowing the Defendants to delve into areas privileged and not waived and by giving defendants the opportunity to coerce, directly or indirectly, the physicians into viewing the facts in a light most favorable to the Defendants driving a wedge between the physician and patient and poisoning the relationship. Tinnon also claimed that M.R.E. 503(f) speaks specifically of ex parte contacts as it applies to medical malpractice cases. Finally, Tinnon asked for an interlocutory appeal in the event that the court should decide that ex parte contact was appropriate.
¶12. The trial court entered an order waiving the medical privilege of Tinnon on June 16, 1995. This order directed medical providers with any medical information relevant to the allegations upon which the claim is based to disclose such information at the request of the Defendants or their attorneys without a further waiver by Tinnon. The order did not address the request for interlocutory appeal. However, the lower court instructed that the disclosure of relevant information was not to be limited by Tinnon or his legal representatives as to time, place, or method of disclosure, and any attempt to so limit such disclosure would be in direct violation of the order.
¶13. Subsequent to the entry of the trial Judge's order, counsel for Tinnon wrote a letter to Dr. Gary on July 6, 1995. The letter reminded Dr. Gary that there was a physician-patient privilege. The letter stated that the order by the trial court waived the privilege as it pertained to relevant information in the case at bar and noted there might be a question as to what was relevant. The letter continued:
The Judge has also impliedly, if not specifically, allowed the defense attorneys to have ex parte private meetings with you. The court does not require you to meet in private with defense counsel. A problem may arise in your determination of what is "relevant to the allegations" in any of these private meetings.
You are therefore left with several choices. You can (1) attempt to, at your own risk, make a determination of what is relevant to the allegations on your own and risk violating the unwaived privilege; (2) you can require that any information conferences be done in the presence of plaintiff's counsel; and (3) you can request that any conferences be held by way of a formal deposition. Regardless you may want to contact your own private counsel to make sure that you are not at risk of violating your legal and ethical responsibilities to Mr. Tinnon in any ex parte contact with defense counsel, especially since your [sic] are not in the jurisdiction of this state.
While Mr. Tinnon has nothing to hide in this litigation, he does want to be assured that the remaining physician/patient privilege between you and Mr. Tinnon is not harmed. Regardless of this litigation, we are most concerned that trust and confidence be maintained between you and Mr. Tinnon since trust is an important factor in any patient's health care plan.
Judge Terry has made it clear that we are not allowed to prohibit you from giving the defense relevant information outside of my presence. However, I do believe I have a duty to my client to advise you that we are concerned about non- relevant information inadvertently being ...