State of Missouri, ex rel. BHC Spirit of St. Louis Hospital, Inc., Relator, v. The Honorable Lucy Rauch, Judge of Division No. 3 of the Circuit Court, St. Charles County, Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, ex rel. BHC Spirit of St. Louis Hospital, Inc., Relator, v. The Honorable Lucy Rauch, Judge of Division No. 3 of the Circuit Court, St. Charles County, Missouri, Respondent. Case Number: ED81692 Handdown Date: 11/05/2002 Appeal From: Writ of Prohibition Counsel for Appellant: Stephen G. Reuter Counsel for Respondent: Michael D. Gibbons Opinion Summary: BHC Spirit of St. Louis Hospital sought a writ of prohibition to prevent the court from enforcing its order requiring BHC to mail a notice to former patients inviting them to contact the attorney of a former patient suing the hospital if they had knowledge of sexual improprieties a residential treatment facility it owns and operates in St. Charles. PEREMPTORY WRIT ISSUED. Writ Division Two holds: Discovery is limited to the methods specified in Rule 56.01. The court had no authority to require BHC to send notices to its former patients. Citation: Opinion Author: Lawrence G. Crahan, Presiding Judge Opinion Vote: PEREMPTORY WRIT ISSUED. R. Dowd, Jr., and Hoff, JJ., concur. Opinion: Relator BHC Spirit of St. Louis Hospital, Inc. ("Relator") owns and operates a residential treatment facility in St. Charles, Missouri. It is the named defendant in a malpractice lawsuit filed by a former patient ("Plaintiff"), who, as a minor, was placed there by the Missouri Division of Family Services for involuntary treatment and counseling for emotional trauma. Plaintiff alleges that while she was a patient she was repeatedly sexually molested by a 29 year-old employee

("Employee") of Relator. Plaintiff's suit was filed in May, 2001 but was stayed until June, 2002 due to the pending liquidation of Relator's malpractice carrier. Immediately after the stay was lifted, Plaintiff served Relator with her first interrogatories and request for production and also filed a "Motion to Require Notice to Former Patients" ("Request"), which is the subject of this writ proceeding. The Request alleged that Plaintiff had advised her counsel that Employee had engaged in sexual relations with other patients at Relator's facility. The Request stated that Plaintiff wished to investigate how widespread these activities were but could not do so without asking Relator to reveal the identity of other patients at the facility, which could be confidential. Instead, as a method of "protecting patient confidentiality," Plaintiff asked the court to order Relator to mail a printed notice to all patients at the facility between June 1, 1993 and June 1, 1998. The proposed notice was as follows: NOTICE TO FORMER PATIENTS The attorney named below has brought suit against BHC Spirit of St. Louis Hospital, located in St. Charles, Missouri, alleging that a patient of that facility was sexually molested by an adult male employee of the hospital between September 1997, and April, 1998. By court order, this notice is being sent to you by that hospital, because the hospital's records indicate that you, or someone on whose behalf you have been listed as a contact person, were a patient of that facility. The purpose of this notice is to notify you that if you are aware of any incidents of improper sexual contact between employees of the hospital and its patients, you may, but are not required to, report that information to the attorney named below, who represents the patient in this lawsuit. To preserve patient confidentiality, the patient's name has not been disclosed to the court, to the attorney named below, or to any person other than a representative of the hospital. Contact:Michael D. Gibbons The Gibbons Law Firm 656 SE Bayberry Lane, Suite 105 Lee's Summit, Missouri 64063 (816) 525-8838; 525-4214 (Fax) Email: glawfirm@swbell.net Respondent granted the Request in part and denied it in part, ordering Relator to mail notice to patients at the facility between December 1, 1996 and December 1, 1998 who were in the same treatment area as Plaintiff. Further, the court directed that the notice be "limited to information patients may have about sexual contact by [Employee] and patients of the facility or any employee's sexual contact with Plaintiff." After Respondent denied Relator's motion and amended motion to reconsider, Relator filed this proceeding seeking a writ of prohibition barring enforcement of Respondent's order. After reviewing Relator's suggestions in support and Respondent's suggestions in opposition, we dispensed with further briefing and argument and issued our peremptory writ of prohibition. This opinion sets forth our reasons for issuing the writ. Rule 84.24(1). In support of its petition for issuance of the writ, Relator urges that requiring it to mail notice to its former patients

is not a proper method of discovery pursuant to Rule 56.01 and that the notice constitutes improper solicitation by plaintiff's counsel. Relator's first ground is dispositive. Rule 56.01 provides: Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Respondent urges, without citation to any authority so holding, that the scope of a court's discretionary authority to facilitate discovery is not limited to the methods specifically mentioned in Rule 56.01. We disagree. The trial court's authority to order discovery in civil cases derives solely from the Rules of Civil Procedure and is limited to the methods set forth in Rule 56.01. Even if that were not the case, Relator has not shown that the methods specified in Rule 56.01 are inadequate under the circumstances. As illustrated by State of Missouri ex rel. Dixon Oaks Health Center, Inc. v. Long, 929 S.W.2d 226 (Mo. App. 1996), a case with remarkably similar allegations, it is entirely possible to obtain an abundance of information through normal discovery methods while still protecting the identities of other innocent patients who may have no knowledge of the incidents alleged. Contrary to Respondent's contention, Rule 41.04 does not provide authority for the subject order. Rule 41.04 provides: If no procedure is specifically provided by rule, the court having jurisdiction shall proceed in a manner consistent with the applicable statute, or statutes, if any, and precedent but not inconsistent with Rules 41 to 101, inclusive. The procedure for discovery is specifically provided by Rules 56-61. Respondent's order is not consistent with those rules. In view of our determination that Respondent's order is not authorized by the Rules of Civil Procedure we need not address any of the other serious concerns posed by Respondent's order. When a trial court makes an order in discovery proceedings which exceeds its jurisdiction or is an abuse of discretion, prohibition is the proper remedy, State ex rel. LaBarge v. Clifford, 979 S.W.2d 206, 108 (Mo. App. 1998). Peremptory writ issued. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.