CARLTON v. CRAINE (1968)

OPINION ON DENIAL OF PETITION FOR REHEARING

The opinion of the court filed herein April 18, 1968, is limited to a consideration of two very specific questions: (1) whether, in an action for damages for personal injuries suffered by the plaintiff in an automobile accident when he was admittedly a guest of the defendant driver, the hospital records of the defendant insofar as they may show that the defendant was ‘under the influence of intoxicants' at the time of his arrival at the hospital by ambulance shortly after the accident, are privileged within the meaning of the physician-patient privilege, and thus not subject to examination by the plaintiff; and (2) whether the trial court, having granted plaintiff's motion for an order requiring defendant to make such records available to plaintiff for his inspection, may examine the hospital records in their entirety in camera to determine what part of those records may come within the scope of the order for inspection as showing that defendant was ‘under the influence of intoxicants' at the time of his arrival at the hospital.

At the trial of this action plaintiff must, of course, establish by competent evidence that, at the time of the accident, defendant was under the influence of intoxicants and that his faculties were substantially impaired thereby, as alleged in his complaint. Admittedly this may be more difficult since a physical examination of defendant at any time after his release from the hospital would have served no useful purpose. It should be emphasized, however, that nothing we have said in our opinion is intended to restrict plaintiff's right to all proper discovery before trial as to all relevant facts and documents which are not privileged or as to the identity of all persons having knowledge of all relevant facts. Nothing in our opinion is intended to restrict his right to take the deposition of the custodian of the hospital records and, subject to any proper objections, ascertain from him what documents there may be in those records, including the reports of any blood tests, which are not privileged and which relate to defendant's condition, as a preliminary step toward further proceedings for pretrial inspection of those particular documents or as a basis for the issuance of a subpoena duces tecum for their production at the time of trial. On the taking of such deposition he can also ascertain, subject to any proper objections, the identity and location of any persons, as shown by the hospital records, who may have knowledge of any facts relating to defendant's condition at the time of his arrival at the hospital, in order that he may interview or take the depositions of any such persons or procure subpoenas requiring their attendance at the trial. Much time would have been saved for all concerned if plaintiff had chosen to follow this course in the first instance.

We find nothing in Harabedian v. Supeior Court etc., 195 Cal.App.2d 26, 15 Cal.Rptr. 420, or in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152, which causes us to alter the conclusions reached in our opinion. The precise questions considered and decided by us were not before the court in either of those cases.

The petition for rehearing is denied.

I would grant the petition for rehearing for the reasons stated in my dissenting opinion.

FOOTNOTES

FOOTNOTE.  

McCOY, Associate Justice.* FN* Retired Judge of the Superior Court sitting under assignment by the Chairman of the Judicial Council.

WOOD, P.J., concurs.