Johnson v. District Court of Oklahoma County , 738 P.2d 151 ( 1987 )

LAVENDER, Justice:

Petitioner, Coise Y. Johnson, brought a medical malpractice action against respondents, real parties in interest, Michael Seik-el, M.D. and Fenton M. Sanger, M.D., alleging that the malpractice of these defendants had caused the death of petitioner’s son. The defendant physicians presented a motion to respondent district court requesting a finding that the physician/patient privilege concerning any communication made to any health care provider or physician concerning the matter in controversy had been waived pursuant to 76 O.S.Supp. 1985 § 19(B).¹ This motion also sought authority to conduct discovery by ex parte communications with petitioner’s physicians. The trial court entered an order finding the privilege waived and required discovery by ex parte communication. Petitioner concedes the waiver of the physician/patient evidentiary privilege under the auspices of section 19(B), but argues that neither that section nor any other provision authorizes discovery by ex parte communication as ordered by respondent district court. Petitioner seeks assumption of original jurisdiction and relief by writ of prohibition from the alleged excess of the district court’s exercise of discretionary authority.

Assumption of original jurisdiction and relief by writ of prohibition is appropriate to prevent the excessive exercise of discretion by a trial court in ordering pretrial discovery.²

We agree with the position urged by petitioner that the order for discovery by ex parte communication was beyond the discretionary powers of the trial court. Title 12 O.S.Supp.1982 § 3201 provides:

Sections 1 through 15 of this act shall be known and may be cited as the Oklahoma Discovery Code. The Discovery Code shall govern the procedure for discovery in all suits of a civil nature in all courts in this state, (emphasis added)

Section 3202, provides:

The Discovery Code shall be liberally constructed to provide the just, speedy and inexpensive determination of every action, (emphasis added)

Section 3203(A); provides:

DISCOVERY METHODS. Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under this section, the frequency of use of these methods is not limited.

The Oklahoma Discovery Code does not authorize ex parte communications as a proper form of discovery.

Respondent physicians argue that 76 O.S.Supp.1985 § 19(B), is a special law which applies specifically to medical malpractice actions and governs the scope of discovery which may be exercised in such actions. We agree with that assertion. Title 76 O.S.Supp.1985 § 19(B) does provide for a complete waiver of the patient/physician privilege in a medical malpractice action as opposed to the qualification of the evidentiary privilege under 12 O.S.1981 § 2503(D)(3), in other cases where a physical, mental or emotional condition of a patient is raised as an element of a claim or a defense. The scope of discovery under section 19(B) includes any material relevant to any issue in the malpractice action. The scope of discovery under section 2503(D)(3) is limited to the issue of the condition raised as an element of the claim or defense.

The issue before us, however, is not the scope of discovery authorized by section 19(B) but rather the methods by which discovery may be carried on. Respondent physicians have argued that section 19(B), being a special statute containing no limitation on discovery methods, authorizes ex parte communication as a legitimate discovery tool. Such a finding, however, would clearly conflict with the expressed legislative intent that the Oklahoma Discovery Code shall govern discovery procedure in all suits of a civil nature. It would also result in a construction of section 19(B) which would be contrary to the rule that a construction harmonizing apparent conflicts is preferable where such construction is possible.³ Here we have an express declaration in 12 O.S.Supp.1982 § 3201 of the applicability of expressly enumerated methods of discovery to all suits of a civil nature. In 76 O.S.Supp.1985 § 19(B), we have a statute which authorizes the scope of discovery as to a privilege waived by operation of that law when a medical malpractice action is filed. The statute does not address the methods which may be employed to explore the information made available as a legitimate subject of discovery. There is no necessity to imply a conflict between section 3201 and section 19(B). The methods by which discovery may be exercised under section 19(B) are those authorized by 12 O.S.Supp.1982 § 3203(A).⁴ Ex parte communications are not an authorized form of discovery method. The respondent district court’s order compelling discovery by ex parte communication was in excess of its authority and writ of prohibition is issued to prevent the enforcement of that order.

ORIGINAL JURISDICTION ASSUMED; WRIT OF PROHIBITION ISSUED.

DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, SIMMS and WILSON, JJ., concur. OPALA, J., with whom KAUGER, J. joins concurring.

1 . This section provides, in pertinent part:

In cases involving a claim for personal injury or death against any practitioner of the healing arts or a licensed hospital, arising out of patient care, where any person has placed his physical or mental condition in issue by the commencement of any action, proceeding or suit for damages, or where any person has placed in issue the physical or mental condition of any other person or deceased person by or through whom such person rightfully claims, he shall be deemed to waive any privilege granted by law concerning any communication made to a physician or health care provider with reference to any physical or mental condition or any knowledge obtained by such physician or health care provider by personal examination of any such patient; provided that, before any such communication, medical or hospital record or testimony is admitted in evidence in any proceeding it must be material and relevant to an issue therein, according to existing rules of evidence.

2 . Cox v. Theus, 569 P.2d 447 (Okla.1977).

3 . AMF Tubescope Co. v. Hatchel, 547 P.2d 374 (Okla.1976).

4 . See Eason Oil Co. v. Corp. Comm., 535 P.2d 283 (Okla.1975).