ARGUED APRIL 12, 1976.
DECIDED APRIL 22, 1976.
Action for damages. Dougherty Superior Court. Before Judge Farkas.
Kunes Kunes, G. Gerald Kunes, for appellant.
Lokey Bowden, Hamilton Lokey, Glenn Frick, Edmund Landau, Jr., Watson, Spence, Lowe Chambless, G. Stuart Watson, for appellees.
1, 2. Where hospital records are properly certified, the effect of such certification is to dispense with preliminary proof of authenticity on the part of the custodian of the records, but not to make admissible any matter contained in the reports which is otherwise subject to objection.
3. A litigant who fails to object to hearsay evidence when it is offered waives his right to complain thereafter. Hospital records should not include diagnostic opinions, conclusions, hearsay statements and the like, but if they are offered in toto and the defendant does not complain at the time, he may not thereafter be heard to say that his rights were illegally invaded.
4. The right of privacy is the right to be free from public intrusion into one's private affairs, public disclosure of embarrassing private facts concerning him and publicity which places him in a false light in the public eye. This does not, however, mean that every statement of one citizen about another is under all circumstances privileged. Invasion of privacy, like libel and slander, is a tort, damages for which tend to protect the individual from undue exposure, but it can not be invoked where the statement is privileged because of an overriding right to know. Evidence given on the trial of a case, even though false, is not actionable. In like manner evidence introduced without objection in a legal proceeding cannot thereafter be made the basis of a tort action on the ground that it is an invasion of the privacy of a party litigant.
ARGUED APRIL 12, 1976 — DECIDED APRIL 22, 1976.
This action for damages for invasion of privacy sets forth substantially the following facts: The plaintiff, Michael Dennis, was seriously and permanently injured when, while on property owned by Adcock Morris Corporation and operated as a recreation park, he attempted to dive into a swimming area and damaged his spinal cord, causing paraplegia. The plaintiff sued Adcock, Morris and the corporation for $3,302,276.52. The jury returned a verdict in his favor of $100,000. He then filed the present action against the same defendants and additionally Gulf Insurance Company (insurer of the defendants in the tort action who furnished counsel in that case), American Reinsurance Corporation (the reinsurer of Gulf); Palmyra Park Hospital, and Hospital Corporation of America, seeking damages against them jointly and severally for invasion of privacy on the theory that the defendants, acting in concert, had introduced confidential hospital records in evidence against him in the tort action, which records contained damaging material which so influenced the jury in the tort action that instead of the sum sued for he received an entirely inadequate verdict. Plaintiff contends that the introduction of the record in evidence was for the purpose of obtaining this result, because the record contained a statement made to one of the nurses that the plaintiff "had been drinking beer all day"; that plaintiff had never given the hospital authority to display his medical records to anyone other than his own attorneys; that the tort action defendants could have legally acquired the records by a notice to produce but that irrespective of this they, through their attorney of record, wilfully, maliciously and illegally sought and received such records from the hospital and caused the latter to certify them so as to make them admissible in evidence; that the records were introduced in evidence just prior to the defendants resting, the case was being tried some 45 miles from the hospital, and the nurse in question was unavailable for rebuttal testimony, so that the sole purpose and effect of the introduction of the records was to interject into the case this uncontradicted statement of the nurse, for the sole purpose of injuring the plaintiff further by denying him an adequate award for the injuries received.
Each of the defendants moved for dismissal for failure to state a claim and all motions were granted. Plaintiff appeals.
1. Code § 38-713 provides: "(a) Medical records, or reproductions thereof, when duly certified by the custodians thereof, need not be identified at the trial and may be used in any manner in which records identified at the trial by the custodian could be used." The preamble to the Act of origin (Ga. L. 1971, p. 441) states that it provides "for the authentication and admissibility of medical records or copies thereof for use as evidence" and to "excuse certain persons from personally appearing in certain circumstances," among other things. It deals with preliminary proof only. In no part does it enlarge upon the effect or the admissibility of evidence in other than a formal sense; that is, it provides a means of identification absent a custodian, but otherwise is to be used in the same manner as though the custodian were present.
2. The rules relevant to the introduction of medical records, in a substantive sense, remain unchanged. "If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based." Cassano v. Pilgreen's, Inc., 117 Ga. App. 260 (2) ( 160 S.E.2d 439), and see Atlanta Transit System v. Biggs, 133 Ga. App. 960 (1) ( 213 S.E.2d 87). Exactly the same rule applies to any inadmissible testimony contained in the hospital record, including hearsay, and "hospital records admitted in toto rather than through selected relevant portions were inadmissible because of the presence therein of hearsay, statements of opinion, and similarly objectionable items." Bowen v. Sentry Ins. Co., 134 Ga. App. 88 (2) ( 213 S.E.2d 185). A statement in a hospital record that a patient stated to his nurse that he had been drinking on the day of the accident is patent, unalloyed hearsay, and there is no way in which it can be legally admitted over proper objection to prove the fact at issue: intoxication. Even when admitted without demur it has no probative value and on request the jury should be so instructed.
3. As counsel for the appellant admits, whatever part of the hospital record in question was properly admissible as to content could have been obtained and introduced in evidence by other means than certification; for example, by subpoena or a notice to produce. It is not the manner in which the defendants in the damage suit obtained the record and had it prepared for admission in evidence, but at least so far as this record shows the failure of the plaintiff to object to inadmissible material, which placed the statement of the plaintiff's intoxication before the trial jury. The same choices were open, the same results would obtain, regardless of the method used.
As stated in Pavesich v. New England Life Ins. Co., 122 Ga. 190 ( 50 S.E. 68), the right to privacy which is basically the right to be let alone may be waived by the individual concerned. It appears to us that these defendants did no more than furnish a certified copy of medical records in the same form in which they would have been if identified by the testimony of the custodian.
We cannot tell from the record before us whether there was on the trial of the previous case an objection to the hearsay statements (which was in order whether the documents were offered by certification, or identification by a witness), or whether there was a request to charge on the subject. But the method of introduction of the document would not change the law regarding the admissibility of its contents as between these or other legal means.
4. But, the plaintiff argues, the hospital record was a confidential document. Such records, being obtainable in legal proceedings by subpoena and other means, are obviously not absolutely confidential in the sense that they cannot be used.
Insofar as privilege is concerned, there is no privileged communications immunity in Georgia between hospital and patient. It should also be observed that in libel and slander cases there is an absolute privilege as to pertinent evidence introduced in a judicial proceeding and relating to its subject matter. Veazy v. Blair, 86 Ga. App. 721 (2) ( 72 S.E.2d 481); Horton v. Tingle, 113 Ga. App. 512 (2) ( 149 S.E.2d 185). While the question has not before been raised in Georgia, the general rule is that evidence introduced in a legal proceeding which, as against a slander or libel action, would be absolutely privileged cannot be the subject of damages for the tort of invasion of privacy. In Munsell v. Ideal Food Stores, 494 P.2d 1063, 1075, in ruling on a count charging invasion of privacy it was held: "It is clear from the decisions that only unwarranted invasions of the right of privacy are actionable. The corollary to this rule is that a `warranted' invasion of the right of privacy is not actionable. Appellant urges that we recognize and apply here the rule that the right of privacy does not prohibit the communication of any matter though of a private nature, when the publication is made under circumstances which would render it a privileged communication according to the law of libel and slander. This rule is recognized in 41 AmJur. Privacy, § 20, p. 940; Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A.L.R. 964; and in the first comprehensive article on the subject of the `Right to Privacy' in 4 Harvard Law Review 193, at page 216, published by Samuel D. Warren and Louis D. Brandeis in 1890. We hold that the rule is sound and should be applied in the case at bar."
Whether or not the plaintiff told a nurse that he had been drinking all day, and whether or not the statement was true, its introduction by way of evidence material to a tort action could not be the foundation of a libel action. It follows that the plaintiff cannot recover damages for such use under the guise of an invasion of privacy rather than a libel.
It is true that the public's right to inspect county and municipal records set out in Code Chapter 40-27 is held not applicable to "medical records and similar files, the disclosure of which would be an invasion of personal privacy." Code § 40-2703. It is true that unauthorized publicity regarding the contents of such records, the patient's state of health, his anatomical debilities, and the opinions, diagnoses and tests of his doctors would indeed come within the inhibition of this Code section, but even so use in a relevant court proceeding is far different from dissemination by television or newsprint. Cf. Peacock v. Retail Credit Co., 302 F. Supp. 418, in which the distinction between public and private disclosure was carefully drawn by Judge Edenfield.
The petition failed to state a claim for invasion of privacy against any of the defendants, and the trial court properly sustained the motions to dismiss.
Judgment affirmed. Quillian and Webb, JJ., concur.