Avery v. Nelson , 455 P.2d 75 ( 1969 )

HODGES, Judge

(dissenting).

In my opinion where a person claims personal injuries and furnishes the trial court a list of her witnesses at a pre-trial conference, one of whom is her doctor, she has then effectually waived her statutory physician-patient privilege under 12 O.S. § 385(6).

The purpose of the physician and patient privilege is to enable the patient to secure medical aid without a betrayal of confidence. It was intended as a protection to the patient rather than a mere inhibition to the physician, and thus the statutory privilege may be waived by the patient. 58 Am.Jur., Witnesses, § 437. Once a patient has filed suit and has decided to prove her personal injuries by her doctor, then the rule of privilege communication has no purpose. She at some point in the proceeding must disclose whether she invokes the privilege or waives it. Is it fair and equitable to permit her to wait until after the trial has started? I think not. Justice and fair play dictate that she be required to make this election at a pre-trial conference.

Under our rules for pre-trial hearings, the parties to a lawsuit are required to make a reasonable disclosure of all facts. They are required to disclose the identity and addresses of their witnesses, who may be called to testify, including the subject matter of their testimony. Chapter 2, Title 12, Appendix, Rides for the District Courts, Rule No. 5. It is at this juncture in the trial proceedings that the plaintiff should be required to elect whether or not she intends to invoke her physician-patient privilege under 12 O.S. § 385(6).

At pre-trial the plaintiff knows, or should know, who she will call as witnesses and for what purpose. There is no reason why the plaintiff should be allowed to shroud the proceedings in mystery by first invoking the privilege rule of physician-patient, and then being allowed to waive it after the trial has commenced. The whole concept of modern discovery procedures and pre-trial methods is to eliminate guesswork, surprise and the sporting theory of justice. The plaintiff should be required to elect at pre-trial whether she waives or claims her statutory privilege of physician and patient. This requirement will expedite the trial proceedings and insure a more orderly process of justice. I respectfully dissent.