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State ex rel. Fennewald v. Joyce

Supreme Court of Missouri, En Banc

November 21, 2017

STATE ex rel. RONALD FENNEWALD, as Brother of THOMAS FENNEWALD, Deceased, Relator,


          PER CURIAM

         The scope of medical authorizations has long been fertile ground for discovery disputes. But it need not be so. In State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995), and State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997), this Court established the reasonable boundaries and process for such discovery - "medical authorizations must be tailored to the pleadings, and this can only be achieved on a case-by-case basis." In this case, as in all cases, medical authorizations require a tailored "case-by-case" analysis by the parties and, if necessary, the circuit court, in accordance with Stecher and Syler. This was not done. As such, the preliminary writ of prohibition is made permanent.


         In January 2016, Thomas Fennewald died allegedly, from metastatic colon cancer. In the subsequent wrongful death action filed against Jefferson City Medical Group, P.C., Thomas W. Schneider, M.D., and Christopher Case, M.D. ("Defendants"), Fennewald's surviving brother alleged failure to: inform of the need for or to prescribe a colonoscopy; perform or properly perform physical examinations; timely detect signs and symptoms of colon cancer and distal metastasis; and refer Fennewald to appropriate diagnostic specialties. For damages, the petition alleged: the development of preventable colon cancer; distal metastatic disease; pain, anguish, disfigurement, and disability; loss of earnings and earning capacity; cost of medical care; loss of enjoyment of life; emotion distress, fear, and terror; the pain of death; funeral costs and expenses; and all damages available under the Missouri Wrongful Death Act.

         In the course of discovery, Defendants sought an order from the circuit court authorizing the release of Fennewald's medical records. After briefing and a hearing, the circuit court signed an "Order Authorizing the Release of Medical Records" in January 2017. This medical authorization order recited Fennewald's death and stated his "medical care and treatment, including various physical conditions prior to and at the time of his death [, ] have been called into issue." The circuit court concluded:

Mr. Fennewald's medical records, protected by the physician-patient relationship or other pertinent privilege, from August 1, 1987, to present relating to medically significant injury or illness suffered by Mr. Fennewald during said time that is called into issue by the allegations set forth in Plaintiff's wrongful death action (including, but not limited to: Mr. Fennewald's colon cancer; Mr. Fennewald's history of and treatment for Hodgkin's lymphoma and other forms of cancer; Mr. Fennewald's co-morbidities and medical history; Mr. Fennewald's conversations with other doctors about cancer screening; discussion prior to his treatment with Defendants that any providers had regarding the need for, prescription for, or recommendation for a colonoscopy or other screening tests based upon Mr. Fennewald's age, medical history, family history, and published guidelines) should be released upon request ....

         The medical authorization order further commanded "that any health care provider, employer, or other entity possessing records" of Fennewald

is hereby ordered, upon production or receipt of this Order [to] disclose said protected records and/or medical information in any form (including oral, written and electronic) dating from August 1, 1987, to present ..., including but not limited to, the following:
• All medical records, including, but not limited to: inpatient, outpatient & emergency room treatment; all clinical charts, reports, documents, correspondence, test results, statements, questionnaires/histories, office and doctors handwritten notes: and records received from other physicians or health care providers;
• All autopsy, laboratory, histology, cytology, pathology, radiology, CT scan, MRI, echocardiogram & cardiac catheterization reports;
• All radiology films, mammograms, myelograms, CT scans, MRI, photographs, bone scans, pathology, cytology, histology, autopsy, immune-histo-chemistry specimens, cardiac catheterization videos/CDs/films/reels, and echocardiogram videos;
• All pharmacy prescription records, including, but not limited to: NDC numbers and drug information handouts/monographs;
• All billing records, including, but not limited to: all statements, itemized bills and ...

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