Monday, August 12, 2013

Privileged matters excepted from discovery -

see -

"x x x.

2. It is of course possible to treat Josielene’s motion for the issuance of a subpoena duces tecum covering the hospital records as a motion for production of documents, a discovery procedure available to a
litigant prior to trial. Section 1, Rule 27 of the Rules of Civil Procedure

SEC. 1. Motion for production or inspection; order.— Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (Emphasis supplied)

But the above right to compel the production of documents has a limitation: the documents to be disclosed are “not privileged.”

Josielene of course claims that the hospital records subject of this case are not privileged since it is the “testimonial” evidence of the physician that may be regarded as privileged. Section 24(c) of Rule 130 states that the
physician “cannot in a civil case, without the consent of the patient, be
examined” regarding their professional conversation. The privilege, says
Josielene, does not cover the hospital records, but only the examination of
the physician at the trial.

 To allow, however, the disclosure during discovery procedure of the
hospital records—the results of tests that the physician ordered, the
diagnosis of the patient’s illness, and the advice or treatment he gave him—
would be to allow access to evidence that is inadmissible without the patient’s consent. Physician memorializes all these information in the
patient’s records. Disclosing them would be the equivalent of compelling
the physician to testify on privileged matters he gained while dealing with
the patient, without the latter’s prior consent.

x x x."