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Arnett v. Baskous (7/30/93), 856 P 2d 790
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
MARCUS GENE ARNETT, )
) Supreme Court
Appellant, ) File No. S-5277
v. ) Superior Court
) File No. 3AN S91 10041 Civil
ALEXANDER BASKOUS, )
) O P I N I O N
________________________________) [No. 3985 - July 30, 1993]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter Michalski, Judge.
Appearances: Marcus Gene Arnett, pro se,
Anchorage. David F. Leonard, Hughes,
Thorsness, Gantz, Powell & Brundin,
Anchorage, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews and Compton, Justices.
Marcus Arnett appeals the superior court's grant of
summary judgment in favor of the defendant-appellee, Dr.
Alexander Baskous. Arnett's principal claim is that Dr. Baskous
breached his duty to keep Arnett's medical records confidential
by releasing the records to the District Attorney for use in
Arnett's criminal trial. We conclude that Arnett's claim has no
merit and affirm the judgment.
II. FACTS & PROCEEDINGS
While serving a fifteen year sentence for sexually
abusing his minor daughter, Arnett brought this civil suit
seeking damages from Baskous, his physician, for releasing
Arnett's confidential medical records to the Anchorage District
Attorney for use in Arnett's trial. Arnett asserts that doctors
owe a "fiduciary duty"to their patients to keep medical records
confidential and that Baskous breached this duty by delivering
the files to the district attorney.
Baskous moved for summary judgment arguing, among other
things, that he was justified in releasing the files because he
was acting pursuant to a valid court order. Arnett opposed the
summary judgment motion. He also requested that the trial court
allow a fellow prisoner to appear for Arnett as lay counsel. The
trial judge denied Arnett's lay counsel motion without stating
his reasons for the denial.
A hearing was held on the summary judgment motion in
May 1992. Baskous argued that, even accepting all of Arnett's
statements as true, a physician should not be held civilly liable
for releasing medical records to a district attorney for use in a
criminal trial, particularly when the records are ordered
released by a valid court order. Baskous highlighted the court's
power to compel compliance with its order. He also pointed out
that absolute immunity from civil liability is generally provided
to a witness' testimony, an analogous situation according to
In his briefing and at oral argument, Arnett argued
that the subpoena should not shield Baskous from liability for
the disclosure because the subpoena directed the doctor to bring
the files to court on December 5, 1989 and the doctor actually
released the files directly to the Anchorage District Attorney on
December 4, 1989.1 Arnett claimed that by giving the files
directly to the District Attorney one day before they were
ordered to be handed over to the court, Baskous violated the
subpoena and deprived Arnett of a chance to inspect the records
or argue against their admission at trial.
After listening to the argument, the trial judge stated
that he found no material issues of fact based on the affidavits
before him. He also indicated that he would grant Baskous'
summary judgment motion because he found that the doctor had
released the files in response to a valid subpoena duces tecum.
The judge gave Arnett 20 days to file additional affidavits
supporting his opposition to the summary judgment motion.
Although Arnett filed additional affidavits and documents, they
did not raise any material issues of fact which would tend to
expose Baskous to civil liability. Accordingly, the superior
court entered a final judgment against Arnett in July 1992.
Arnett appeals claiming that the superior court erred
in granting summary judgment and abused its discretion in denying
the motion for lay counsel representation.
A. The Liability Issue2
In essence, Arnett argues that a doctor should be held
liable for damages if he or she reveals confidences without
strictly complying with the precise terms of a subpoena duces
tecum. Although we agree that the orders contained in a subpoena
should be strictly followed and that record custodians act at
their peril if they fail to do so, we find no basis for imposing
civil liability under the facts alleged by Arnett.
It would be completely unreasonable to subject a doctor
to civil liability for a breach of patient confidence when the
doctor releases medical records to, and at the direction of, the
District Attorney acting pursuant to a valid court order. Such a
duty would be onerous in the extreme and would undoubtedly create
costly and unnecessary delays in discovery and prosecutions as
doctors delayed in complying with valid court orders out of fear
that they might incur civil liability.
Although no Alaska case is on point, our holdings in
several cases all militate against the rule of law proposed by
Arnett. See Thompson v. Anderson, 824 P.2d 712, 715 (Alaska
1992) (holding that a bailee is not liable for conversion when it
releases property to the authorities upon the command of law
enforcement officers); Langdon v. Champion, 745 P.2d 1371, 1373
(Alaska 1987) (holding that the physician of a plaintiff who
files a personal injury action may engage in informal, ex parte
communication with defense counsel); and Fairbanks Publishing Co.
v. Francisco, 390 P.2d 784, 793 (Alaska 1964) (recognizing
witness immunity from defamation claims and noting the public
policy favoring the doctrine).3
Furthermore, Arnett has not explained how the release
of the documents prejudiced his criminal case in any way. The
District Attorney obtained the subpoena and would have received
the files if the doctor had brought them to the court as directed
on December 5th. Having the files one day sooner could be of no
great benefit to the prosecution or serious detriment to Arnett's
defense. Arnett demonstrates a complete misunderstanding of the
law when he claims that he "would have had an opportunity to
argue the admissibility of the records before the court"if the
doctor had produced the record in court as directed by the
We affirm the grant of summary judgment to Dr.
Baskous. Nonetheless, we also wish to take this opportunity to
caution the prosecutors against seeking the release of
confidential documents in a manner which violates the strict
terms of a subpoena.
B. The Lay Counsel Motion
Arnett also contends that the trial court erred in
denying his motion for the assistance of lay counsel at oral
argument. In Ferguson v. Department of Corrections, 816 P.2d
134, 140 (Alaska 1991), we held that the superior court had not
abused its discretion in refusing to permit a prisoner's lay
counsel to address the court because the prisoner had not shown
that the ruling prejudiced his case. See also Skuse v. State, 714
P.2d 368 (Alaska App. 1986) (for a thorough discussion of the
propriety of lay representation in a criminal proceeding). In
Ferguson, we concluded that the prisoner had failed to show that
"his case would not have been dismissed if [lay counsel] had been
allowed to participate."Ferguson, 816 P.2d at 140.
Given the weakness of Arnett's legal theory and the
fact that his lay representative actually wrote all the pleadings
and the briefing in this case, we conclude that Arnett has not
shown that the denial of his lay counsel motion prejudiced his
case. It is highly unlikely that even the best oral advocate
could have obtained a favorable result for Arnett. We therefore
hold that the superior court did not abuse its discretion in
denying the motion for lay counsel representation.
1 On appeal, Arnett argues that the files were handed
over to a messenger ("a complete stranger") and that the doctor
should have at least called to verify that the person who showed
up to collect the files was actually from the district attorney's
office. Baskous properly objects to this new contention because
it was never raised in the briefing or at oral argument before
the trial court. We will not consider new arguments on appeal
which were neither raised below nor included in the points on
appeal unless the new issues either establish plain error or 1)
do not depend on new or controverted facts; 2) are closely
related to the appellant's arguments at trial; and 3) could have
been gleaned from the pleadings. O'Callaghan v. State, 826 P.2d
1132, 1133 n.1 (Alaska 1992). Arnett's new argument does not
meet this standard and therefore will not be considered by this
2 In reviewing an award of summary judgment, we
independently determine whether any genuine issues of material
fact exist and whether the moving party is entitled to judgment
as a matter of law. Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska
3 Baskous also cites four cases from other jurisdictions
which have refused to recognize a claim for breach of patient
confidentiality when a physician or psychotherapist reveals
confidential medical information relating to a patient in the
context of a judicial proceeding. See Inabnit v. Berkson, 245
Cal. Rptr. 525 (Cal. App. 1988); Boyd v. Wynn, 150 S.W.2d 648
(Ky. 1941); Moses v. McWilliams, 549 A.2d 950 (Pa. Super. Ct
1988); Clark v. Grigson, 579 S.W.2d 263 (Tex. Civ. App. 1979).
In one cited case, the court recognized such an action but only
because the doctor had unnecessarily revealed a patient's HIV
status in direct violation of a state statute. Doe v. Roe, 588
N.Y.S.2d 236 (N.Y. Sup. Ct. 1992).
4 Obviously, Arnett's defense attorney was not deprived
of an opportunity to argue against the admissibility of the
medical records simply because they were delivered directly to
the District Attorney. The reason the records were admissible in
Arnett's criminal trial is because, under Alaska Evidence Rule
504(d)(7), physician-patient communications are not privileged in