DESARAE LOPEZ VS JOSEPHA MARIA SIMENTAL

Tentative Rulings

Case Number: BC701962    Hearing Date: February 11, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

After review of the court file, the Court makes the following order:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE CENTRAL DISTRICT, JUDGE MALCOLM MACKEY presiding in DEPT. 55 of the STANLEY MOSK Courthouse, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

The Order is signed and filed this date, and incorporated herein by reference. Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.

DATED: February 11, 2020 ___________________________

Hon. Jon Takasugi

Judge of the Superior Court

Case Number: BC701962    Hearing Date: December 05, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff, Desarae Lopez filed this action against Defendant, Josepha Maria Simental for damages arising out of an automobile accident. The parties disagree concerning which party was at fault for the accident, with both claiming the other ran the red light. During deposition, Defendant testified that (a) she talked to the paramedic and physician at Monterey Park Hospital about the facts of the accident immediately after it occurred, and (b) she has a corrective lens prescription, but was not wearing glasses or contacts at the time of the accident. Plaintiff propounded deposition subpoenas for production of medical records on Monterey Park Hospital and Defendant’s ophthalmologist.

Defendant moves to quash the subpoenas, contending his medical records are protected by the constitutional right to privacy. Defendant also, in reply, mentions the physician-patient privilege. Plaintiff, in opposition, argues what Defendant told the Hospital and Defendant’s vision are “at issue” in this lawsuit because the facts surrounding the accident are disputed. Plaintiff also contends Defendant waived any right to privacy by discussing the visit to the Hospital and her prescription lenses at the deposition.

Plaintiff fails to cite any authority for the position that a defendant waives the physician-patient privilege and/or his right to privacy when she is sued in a civil lawsuit. While the parties do not discuss it at length, the Court is particularly concerned about the physician-patient privilege. The patient-physician privilege is waived if the patient tenders an issue in the litigation regarding his or her medical condition. See Evidence Code §996(a); Karen P. v. Superior Court (2011) 200 Cal.App.4th 908, 913.

However, in Manela v. Superior Court (2009) 177 Cal.App.4^th 1139, 114-49, the Court discussed whether a defendant waives the privilege when the defendant is sued and defends herself in a lawsuit. This case is not discussed by the parties, but the Court believes it is on point with respect to the issue presented, and has therefore considered it. The Court held:

One exception to the physician-patient privilege is the patient-litigant exception. Section 996 provides: “There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by: [¶] (a) The patient[.]” Mother claims that father tendered the issue of his seizure/tic disorder, and therefore father's communications with his physicians regarding that medical condition are not privileged. We disagree.

There are two grounds for the patient-litigant exception. “First, the courts have noted that the patient, in raising the issue of a specific ailment or condition in litigation, in effect dispenses with the confidentiality of that ailment and may no longer justifiably seek protection from the humiliation of its exposure. Second, the exception represents a judgment that, in all fairness, a patient should not be permitted to establish a claim while simultaneously foreclosing inquiry into relevant matters.” (In re Lifschutz (1970) 2 Cal.3d 415, 433, 85 Cal.Rptr. 829, 467 P.2d 557, footnotes omitted.)

The patient-litigant exception usually arises in an action for personal injuries. A plaintiff seeking to recover damages arising out of a particular injury cannot claim the physician-patient privilege with respect to that injury because plaintiff's action tenders the issue. (Province v. Center for Women's Health & Family Birth (1993) 20 Cal.App.4th 1673, 25 Cal.Rptr.2d 667, disapproved on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 41, 32 Cal.Rptr.2d 200, 876 P.2d 999.)

A defendant, however, does not tender his or her medical condition by simply denying the plaintiff's allegations regarding the same. For example, in Carlton v. Superior Court (1968) 261 Cal.App.2d 282 (Carlton ), the plaintiff sued the defendant for personal injuries arising from the defendant's alleged negligent operation of an automobile. Although the defendant specifically denied in his answer that he was intoxicated while driving, he did not tender the issue of his alleged intoxication within the meaning of the patient-litigant exception. (Id. at p. 289, 67 Cal.Rptr. 568.)

The Court does not find Plaintiff’s waiver argument compelling. Defendant was asked and answered general questions about her visit to the hospital after the accident and about her prescription glasses. Her health care records, however, were not asked about or implicated in these questions.

The motion to quash is granted. There is no known or cited authority permitting a plaintiff to obtain a defendant’s medical records when the defendant is not making an affirmative claim for medical damages.

No sanctions are sought or imposed.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.