Civil Practice and Procedure

John S. Sandberg, Esquire

Medical or psychiatric evidence that is relevant is always discoverable.  State ex rel. BNSF Railway Co. v. The Hon. Mark H. Neill, No. 96814 (Mo. App. E.D., December 27, 2011), Syler, J.

This was a writ of mandamus proceeding where the issue was whether and to what extent the defendant could obtain access to the records of a psychiatrist who had treated the plaintiff.  In the underlying FELA action, the plaintiff alleged he had fainted in the heat and suffered injuries that included reoccurring seizures and/or fainting spells. The railroad argued the ongoing mental problems were the result of abuse of or withdrawal from prescription medication. The railroad had developed evidence of the plaintiff receiving multiple prescriptions for Valium and Xanax and those prescriptions being withdrawn around the time of the accident. On this basis, they sought the records of the plaintiff’s treating psychiatrist. The injured party requested the protective order to prevent this discovery since he was not claiming a psychiatric condition and the court granted the protective order. The railroad petitioned for a writ of mandamus and the court granted the preliminary writ.

Held: Writ now made permanent. The court abused its discretion in that the railroad had shown the discovery sought was relevant on the issue of causation. Even though the plaintiff was not alleging a psychological condition as damages, the railroad was entitled to this evidence because it “might” lead to the discovery of admissible evidence.

All persons indentified by statute have an absolute right to intervene in a wrongful death case. Martin v. Busch, IV v. Eby, No. 11CG-CC00090 (Mo. App.
E.D., December 27, 2011), Syler, Wm.

The issue was the right of the parents of the decedent to intervene in a wrongful death action for the death of their daughter. The trial court had denied their intervention.

Held: Reversed.
All persons identified in the statute as having a right to proceed with the wrongful death suit have an “absolute right to join” a pending wrongful death case and are entitled to intervene as a matter of right.

When official immunity protects a city employed paramedic depends on the facts. Richardson v. Burrow, No. 97002 (Mo. App. E.D., February 21, 2012), Norton, J.
Defendant Burrow was a paramedic employed by the City of St. Louis who placed an endotracheal tube in decedent’s esophagus rather than his trachea causing decedent to suffer brain injury that lead to his death. The wife of the deceased filed a wrongful death action against Burrow. The trial court granted Burrow’s motion to dismiss on official immunity. In an earlier appeal, 293 S.W.3d 133, 142 (Mo. App. E.D. 2009), the court held that official immunity could be applied to emergency medical responders on a case-by-case basis but the facts at that time were insufficient to determine it. On remand the facts showed that decedent’s respiration and oxygen saturation level were so low that St. Louis City medical criteria for paramedics mandated intubation. The trial court nevertheless granted the paramedic summary judgment on the basis of official immunity.

Held: Reversed.
It is necessary to determine whether the acts of a public employee are discretionary or ministerial. Here the act was ministerial because no exercise of judgment was required given that written guidelines mandated intubation.

This opinion is also summarized under Tort Law, infra