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Spearman v. Western Missouri Mental Health Center6/30/2003
Opinion Vote: REVERSED IN PART AND AFFIRMED IN PART.
Howard, P.J., and Ulrich, J., concur.
Opinion:
Western Missouri Mental Health Center appeals from the circuit court's determination that Myrtle Spearman is entitled to obtain information regarding her deceased son's medical records. We reverse in part and affirm in part.
Factual and Procedural History
On April 16, 2002, Myrtle Spearman filed in the Circuit Court of Jackson County a "Petition to Perpetuate Testimony (under Rule 57.02) and to Produce Medical Records Pursuant to section 191.227.1, section 630.110.1(6), section 630.140, and section 630.167.3(1) RSMo." Spearman is the mother of Charles Johnson, who died in the early morning hours of April 28, 2001, while he was a patient at the Western Missouri Mental Health Center (WMMHC). Spearman sought disclosure of her son's medical records in order to investigate the mysterious circumstances of his death after he choked on a peanut butter sandwich. Citing confidentiality concerns, WMMHC refused to release the records or identify a designated agent to testify concerning the records.
In the Petition, Spearman alleged she was entitled to obtain information about her son's medical records as the surviving parent and appointed representative of the decedent's estate. In Count I, she sought to perpetuate the testimony of WMMHC's designated agent regarding the medical records pursuant to Rule 57.02. In Count II, she sought production of the medical records pursuant to Sections 191.227.1, 630.110.1(6), 630.140, and 630.167.3(1).
On August 22, 2002, following a hearing, the circuit court entered judgment in Spearman's favor on both counts of the Petition. The court ordered WMMHC to produce copies of the medical records to Spearman within seven days. The court also ordered the issuance of a subpoena duces tecum requiring a designated agent of WMMHC to appear for a deposition. WMMHC appeals, contending Spearman was not entitled to relief on either count of the petition.
Standard of Review
In this court-tried case, we must affirm the judgment unless it is unsupported by substantial evidence, against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Count I
WMMHC contends the circuit court erroneously applied Rule 57.02 in granting relief on Count I of the petition.
Rule 57.02 provides in relevant part that " person who desires to perpetuate testimony regarding any matter that may be cognizable in any court in Missouri may file a verified petition in the circuit court in the county of the residence of any expected adverse party." This rule is intended to "apply to situations where, for one reason or another, testimony might be lost to a prospective litigant unless taken immediately, without waiting until after a suit or other legal proceeding is commenced." In re Murphy & Co. Inc., 59 S.W.3d 39, 43 (Mo. App. E.D. 2001) . Situations which have been found to support a finding that testimony may become unavailable include the advanced age of the witness, life-threatening injuries suffered by a witness, or a witness plans to leave the country. Id. at 44 . Rule 57.02 is not a method of discovery to determine whether a cause of action exists. Id. at 43 . The purpose of the rule is to preserve testimony that may not be available after a lawsuit is commenced.
WMMHC contends that Spearman sought to perpetuate testimony under Rule 57.02 for the improper purpose of investigating whether a claim could be filed for the wrongful death of her son. In reviewing Count I of the Petiti
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