State ex rel. Kimberly Barks v. The Honorable Daniel Pelikan, No. SCR99024

At issue before the Missouri Supreme Court was whether a party’s assertion of an “assumption of the risk” affirmative defense – i.e., that the plaintiff-passenger knew that defendant driving a golf cart was intoxicated and rode with her anyway – waived the driver’s physician-patient privilege.

Background Facts and Procedural Posture

A golf cart driven by the defendant was involved in an accident with the plaintiff as a passenger. The passenger sustained personal injuries and sued the driver alleging she was negligent in operating the vehicle because, among other reasons, the driver was intoxicated. The driver denied the allegations, including that she operated the golf car intoxicated. The driver also asserted several affirmative defenses including comparative fault, implied primary assumption of risk, and implied secondary assumption of risk. Specifically, the driver claimed that the passenger “assumed the risk of injury and accident by entering and continuing to ride in the golf cart if the driver of said vehicle was under the influence”, and accordingly, the passenger could not recover against the driver, and/or the passenger’s fault should also be considered.

In discovery, the passenger sought the medical records of the driver from the night of the accident through the following morning. The driver objected and asserted the physician-patient privilege. The passenger filed a motion to compel production of the requested medical records or alternatively to strike the driver’s affirmative defenses. The passenger argued that the driver had waived the physician-patient privilege by “affirmatively interjecting her intoxication into the case via her affirmative defenses.” 

The circuit court sustained the motion to compel and ordered the production of the medical records related to her “alleged intoxication on the date of the incident and the following day.” The driver filed a petition for writ of mandamus or prohibition in the court of appeals, where she sought to prevent the disclosure of her medical records. The court of appeals denied the petition and the driver informed the circuit court of her intention to petition the Missouri Supreme Court for relief. The circuit court ordered the driver to produce the medical records within twenty days, unless the petition to the Supreme Court was still pending. The next day, the driver filed a petition for writ of prohibition or mandamus with the Supreme Court and a preliminary writ of prohibition was issued, commanding the circuit court to take no further action, other than setting aside the order compelling the medical records or show cause why the writ should not issue.

Missouri Authority on the Physician-Patient Privilege

The Supreme Court held unanimously that defendant had not waived the physician-patient privilege and reviewed both the statutory and case law authority underlying that privilege. R.S. Mo. Section 491.060(5) provides:

“The following persons shall be incompetent to testify: …

(5) A physician licensed pursuant to chapter 334, a chiropractor licensed pursuant to chapter 331, a licensed psychologist or a dentist licensed pursuant to chapter 332, concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist, or dentist.

“Any information a physician acquires from a patient while attending the patient and which is necessary to enable the physician to provide treatment is privileged.” State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997). Additionally, the physician-patient privilege applies to medical records. State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. banc 2006). The privilege is for the patient’s benefit and belongs to the patient, not the physician. Id. at 566 n.5. Therefore, even when medical records are directly relevant to a party’s claims, if they are protected by the privilege, they are not discoverable. State ex rel. Stinson v. House, 316 S.W.3d 915, 919 (Mo. banc 2010)

Affirmative Defenses do not Waive the Physician-Patient Privilege

The passenger argued that the affirmative defenses constituted a waiver because it brought the driver’s physical condition into issue. The Missouri Supreme Court held the medical records were protected by the physician-patient privilege, thus not discoverable. The Court reasoned that the driver had not sought any damages for injury, and her claims of comparative fault and assumption of risk were purely defenses. Thus, the driver’s assertion of affirmative defenses of comparative fault and assumption of risk remains involuntary because she would have waived those defenses if she did not.

The passenger argued that the case was distinguishable from previous Missouri cases and the driver’s affirmative defense must waive the privilege because it places her intoxication at issue. In other words, for the driver to succeed on her affirmative defenses, she must prove the fact of her intoxication. However, the Missouri Supreme Court reasoned that the driver’s affirmative defenses as plead are of a nature that are relevant only if the passenger establishes the driver’s intoxication as alleged in the petition. Thus, if the passenger introduces evidence at trial that establishes the driver’s intoxication, then the driver may rely on the passenger’s evidence to pursue and establish her affirmative defense and will not have waived her physician-patient privilege.

Further, while the medical records could establish quickly and definitively whether the driver was intoxicated, simply because the privileged records were relevant did not make them discoverable. Finally, the passenger asserted that the assertion of the privilege in this situation was unfair. The Missouri Supreme Court recognized that the physician-patient privilege is always invoked at the expense of truth-seeking and the equities supporting the privilege are not great in all cases. However, the privilege is set by statute and any challenges to the propriety of the physician-patient privilege is for the legislature.


This case reinforces the importance of the physician-patient privilege, even in the assertion of affirmative defenses.