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Tinnon v. Martin6/18/1998
DATE OF JUDGMENT: 02/19/96
TRIAL JUDGE: HON. JERRY OWEN TERRY SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
STATEMENT OF THE CASE
. This appeal comes before this Court from the Circuit Court of Harrison County, Mississippi, Honorable Jerry Terry, Sr., presiding. The case involves the dismissal of Shirley and Lloyd Earl Tinnon's medical malpractice claim, filed June 13, 1994, against William L. Striegal, M.D., J. Holtz, CRNA, James Corder, M.D., Frank G. Martin, M.D., Surgical Clinic of Biloxi, P.A., Ocean Springs Hospital, and Does 1 through 5 (all referred hereinafter as Defendants). The allegations in the suit arose from the treatment received by Lloyd Tinnon while he was a patient at Ocean Springs Hospital in March, 1993.
. Dr. Martin filed a Motion to Compel Waiver of the Medical Privilege and Permit Ex Parte Conferences with Treating Physicians. The lower court entered an order allowing ex parte conferences on June 16, 1995, waiving the privilege only as to relevant information, relying on Miss. Code Ann. ยง 13-1-21(4). The order provided that disclosure should not be limited by the patient or his attorney as to time, place or method of disclosure and that any attempt to do so would be in violation of the order.
. Subsequent to the entry of this order, Tinnon's counsel wrote a letter on July 6, 1995, to Dr. Gary, who had treated Tinnon during his stay at Ocean Springs Hospital. The letter enclosed a copy of the complaint, the lower court order, and an outline of what Tinnon's counsel saw as the doctor's options in disclosing information to the defense. The letter recommended to the doctor that he might want to obtain legal advice and reminded him that the medical privilege applied to any non-relevant information the doctor might possess.
. After receiving the letter from Tinnon's counsel, Dr. Gary refused to talk to any defense attorneys without Tinnon's counsel being present or except pursuant to a deposition where all the parties would be present. The named defendants filed a motion for contempt for violation of the previous court order waiving Tinnon's medical privilege. At the contempt hearing, Tinnon's counsel admitted to sending the letter but denied that it violated the court order. On February 19, 1996, Judge Terry entered a judgment of dismissal under M.R.C.P. 37(b)(2)(C), finding that the letter was in direct contempt of the court's order. This appeal followed.
. On April 18, 1996, this Court handed down its opinion in Scott v. Flynt, 704 So.2d 998 (Miss. 1996). Tinnon filed a M.R.C.P. 60(b) motion on April 22, 1996, asking the lower court to reconsider its decision to dismiss the suit. However, a hearing on the motion was postponed pending this Court's ruling on the motion for rehearing in Scott v. Flynt. This Court denied the motion for rehearing in Scott v. Flynt on December 8, 1997.
. Tinnon has raised two issues on appeal for this Court to consider. Because of the posture of his claims on appeal, they are restated as follows:
I. WHETHER TINNON IS PRECLUDED FROM COLLATERALLY ATTACKING THE LOWER COURT'S ORDER SUBSEQUENT TO THE ALLEGED VIOLATION OF THE ORDER.
II. WHETHER THE LOWER COURT PROPERLY FOUND WITHIN THE SCOPE OF ITS DISCRETION THE LETTER TO BE A VIOLATION OF THE COURT ORDER SO AS TO APPLY THE SANCTION OF DISMISSAL.
. Although they did not cross-appeal, the Defendants have raised an additional issue regarding the constitutionality of M.R.E. 503(f) and the Court's ruling
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