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Johnson v. Memorial Hospital at Gulfport

December 31, 1998

KEITH JOHNSON, AS THE PERSONAL REPRESENTATIVE OF DIANA N. JOHNSON, DECEASED
v.
MEMORIAL HOSPITAL AT GULFPORT, DR. JOSEPH STRIBLING, DR. RICHARD WEILAND, DR. J. MARK HARRIS, DR. EUGENE MCNALLY AND DR. PHILLIP A. SCHAEFFER



The opinion of the court was delivered by: Waller, Justice, For The Court:

DATE OF JUDGMENT: 03/26/97

TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

EN BANC.

SUMMARY

¶1. On the morning of trial, counsel for Keith Johnson made a Motion in Limine to exclude the deposition testimony of Dr. Jackson and Dr. Fredericks based on ex parte contacts by counsel for the Defendants. The trial court denied the motion but entered an order permitting an interlocutory appeal to this Court.

STATEMENT OF THE FACTS

¶2. On July 18, 1995, Keith Johnson, ("Johnson"), as personal representative of Diana N. Johnson, deceased, filed suit in the Circuit Court of Harrison County, Second Judicial District, against Memorial Hospital at Gulfport, Dr. Joseph Stribling, Dr. Richard Weiland, Dr. J. Mark Harris, Dr. Eugene McNally, and Dr. Philip A. Schaffer, ("Defendants") alleging that Defendants negligently failed to diagnose and treat the decedent.

¶3. On September 1, 1995, the trial court entered an order of waiver of medical privilege. Relying on the exception to the medical privilege found in Miss. Code Ann. 13-1-21(4) (Supp. 1992), the trial court ordered that "any and all medical providers with any medical information relevant to the allegations upon which the claim is based may disclose such information upon the request of the Defendants listed or their respective attorneys, without further waiver being executed by the patient or representative." The order further stated that "the disclosure of such relevant information shall not be limited by the patient . . . nor attorney . . . ."

¶4. Subsequently, the Defendants took the depositions of Dr. Joseph Alan Jackson and Dr. Ruth Fredericks, both of whom treated the decedent specifically for injuries which are at issue. The Plaintiff alleges that the Defendants had contacted both doctors, ex parte, for the purpose of rendering opinions and providing testimony prior to the time that their depositions were taken.

¶5. On the morning of trial, Johnson filed a motion in limine seeking to exclude the entire testimony of both doctors. He based his argument on M.R.E. 503(f), which provides that a party who places his medical condition in issue waives the medical privilege only to the extent of the injury, and on this Court's decision rendered in Scott v. Flynt, 704 So.2d 998 (Miss. 1996). The rule also prohibits ex parte contacts by the opposing party. See M.R.E. 503(f) (amended 1992).

DISCUSSION OF THE LAW WHETHER THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION TO EXCLUDE THE DEPOSITION TESTIMONY OF THE PLAINTIFF'S PHYSICIANS WHICH WAS TAKEN EX PARTE BY THE DEFENDANTS?

ΒΆ6. In Scott, we held: 1) "the plaintiff's medical privilege regarding any relevant medical information form whatever source is automatically waived for the purposes of and only to the extent to which the plaintiff's condition is put at issue"; and 2) evidence obtained from ex parte contacts, without prior patient consent, by the opposing party which ...


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