Franklin Collection Service, Inc. v. Patty Kyle


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Docket Number: 2005-IA-00988-SCT
Linked Case(s): 2005-IA-00988-SCT ; 2005-IA-00988-SCT

Supreme Court: Opinion Link
Opinion Date: 04-26-2007
Opinion Author: DICKINSON, J.
Holding: Affirm & Remand in part: Reverse & Render in part

Additional Case Information: Topic: Physician-patient privilege - Section 13-1-21(1) - M.R.E. 503 - Emotional distress - Invasion of privacy - M.R.C.P. 56(e) - M.R.C.P. 10(d)
Judge(s) Concurring: SMITH, C.J., WALLER AND COBB, P.JJ., AND CARLSON, J.
Judge(s) Concurring Separately: RANDOLPH, J. CONCURS IN PART JOINED BY WALLER AND
Non Participating Judge(s): EASLEY, J.
Dissenting Author : DIAZ, J.
Dissent Joined By : GRAVES, J.
Concur in Part, Concur in Result 1: Randolph, J.
Concur in Part, Concur in Result Joined By 1: Joined by Waller and Cobb, P.JJ., Carlson and Dickinson.
Concur in Part, Dissent in Part 1: Diaz, J.
Concur in Part, Dissent in Part Joined By 1: Graves, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - OTHER

Trial Court: Date of Trial Judgment: 02-09-2005
Appealed from: LEE COUNTY COURT
Judge: CHARLES R. BRETT
Disposition: Denial of Appellant's Motion for Summary Judgment
Case Number: 03-0660

Note: On Motion for rehearing - Previous Opinion Withdrawn & this Opinion Subsituted

  Party Name: Attorney Name:  
Appellant: FRANKLIN COLLECTION SERVICE, INC.




WILLIAM V. WESTBROOK, III JOHN PAUL BARBER



 

Appellee: PATTY KYLE FRANK A. RUSSELL  

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Topic: Physician-patient privilege - Section 13-1-21(1) - M.R.E. 503 - Emotional distress - Invasion of privacy - M.R.C.P. 56(e) - M.R.C.P. 10(d)

Summary of the Facts: The motion for rehearing is denied, and these opinions are substituted for the original opinions. Patty Kyle received medical treatment from Urology, P.A. When she did not pay her $6,390 past due account, Urology assigned its claim on the open account to Franklin Collection Service, Inc. to collect. Franklin filed suit under the open account statute, section 11-58-81, seeking recovery of the unpaid medical bill, attorney’s fees, and court costs. Attached to the complaint was an itemized statement of Kyle’s medical bill listing the codes for various services rendered by Urology. Kyle filed an answer and counter complaint against both Urology and Franklin for violating the medical privilege of Kyle by causing confidential medical information to be attached to the complaint and published as a matter of public record. Franklin, joined by Urology, moved for summary judgment on Kyle’s counterclaim. The trial court denied the motion, stating as its reason that this was a case of first impression. The Supreme Court granted an interlocutory appeal.

Summary of Opinion Analysis: Issue 1: Physician-patient privilege The primary issue is whether the itemized statement of account attached to the complaint is protected by the physician-patient privilege. Pursuant to section 13-1-21(1), all communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his or her charge or by one seeking professional advice are privileged. Because section 13-1-21 is an evidentiary statute, its provisions are superseded by M.R.E 503. Even if the statute were applicable, it does not, by its very specific language, cover the information at issue. The information at issue is the amount due by Kyle and a list of charges and procedures which are identified by code words. Since Kyle does not even allege that these code words and amounts due are communications she made to her doctor, the statute cannot and does not apply to the facts of this case. M.R.E. 503 provides a broader physician-patient privilege than does section 13-1-21. M.R.E. 503 could certainly be interpreted to include the names and results of tests conducted by the physician and those under his or her direction. And if the names of the procedures were privileged, then a reasonable argument exists that code words and abbreviations which represent those procedures would also be privileged. However, Rule 503(d) includes four specific exceptions to this privilege, the third of which provides that there is no privilege under this rule as to an issue of breach of duty by the physician to his or her patient or by the patient to his or her physician. Under this exception, there is no privilege when a controversy develops between physician and patient, such as in a dispute over medical fees or medical malpractice. Although Kyle claims there is no dispute about the amount owed, the entire basis for Franklin’s open account claim and Kyle’s counterclaim is a dispute over the collection of past due medical fees. Therefore, the information included on the itemized statement attached to Franklin’s complaint is not privileged under the rule, and the court erred in denying Franklin’s and Urology’s motion for summary judgment on Kyle’s counterclaim for breach of medical privilege. Issue 2: Emotional distress Kyle’s counterclaim asserts that the actions of Urology and Franklin in publishing the code names of her medical treatments caused her to suffer severe emotional distress. However, in responding to Franklin’s summary judgment motion, Kyle submitted no affidavit or other evidence of physical injury. There can be no recovery for mental pain and suffering from the mere negligent act of another unaccompanied by physical or bodily injury. Additionally, Franklin’s actions were permissible under the statutes and rules of evidence, and in response to the motion for summary judgment, Kyle presented no affidavit or other evidence of negligent conduct. Pursuant to M.R.C.P. 56(e), Kyle may not rest upon the mere allegations or denials of her pleadings, but her response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Since Kyle has not presented any affidavit or other evidence of negligent conduct, the trial court erred in denying Franklin’s and Urology’s motion for summary judgment on that issue. Kyle argues evidence of malice exists because Franklin allegedly had in its possession a non-privileged accounting but chose not to use it. Not only was the statement attached to Franklin’s account not privileged, but no rational juror could construe Franklin’s actions as outrageous or repulsive. Issue 3: Invasion of privacy Kyle argues that, by disclosing her medical information, Franklin and Urology were liable for the tort of invasion of privacy. One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that would be highly offensive to a reasonable person, and is not of legitimate concern to the public. In her response to the motion for summary judgment, the only reference Kyle makes to this claim is the statement that “Kyle has a right to privacy and medical privilege pursuant to MISS. CODE ANN § 13-1-21.” Kyle’s pleadings, read together with her response to the motion for summary judgment, will – by the barest thread – allow her to escape summary judgment on this specific cause of action. Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by M.R.C.P. 56. As the rule specifically provides, parties may not simply rely on their pleadings, nor may they escape summary judgment by outlining what they might discover later. As previously stated, Kyle has by the barest thread met this burden on the issue of invasion of privacy. On rehearing, Franklin argues that compliance with M.R.C.P. 10(d) requires them to attach copies of the invoices to their complaint, and that allowing an invasion of privacy claim for attaching such documentation places them in a quandary. Under the plain language of Rule 10(d), it is clear that no such quandary exist. Franklin could have complied with Rule 10(d) and omitted the attached invoices due to their private nature. Franklin also argues on rehearing that Mississippi recognizes a common law litigation privilege which mandates that any publications made in a legal pleading are absolutely privileged. However, Mississippi does not recognize a litigation privilege related to documents in a legal proceeding which invade privacy.


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