McBRIDE, J.
This is a malpractice action in which the plaintiffs failed to simply state a cause of action in their pleadings under the Revised Code. An amended complaint was filed after July 1, 1970, stating conclusions and no facts. Motions against the amended complaint were overruled because of the adoption in the Civil Rules of "notice pleading." Thereupon the defendants, quite a few in number, sought by interrogatories to discover the factual basis for the plaintiffs' legal conclusions.
This being a malpractice case, many but not all of the inquiries relate to medical facts. No objection was directed to specific questions and while the general objection was untimely the legal question raised in opposition to discovery is of such a nature as to warrant careful attention.
Plaintiffs' position is that because of the privileged communications the issues cannot be made up by discovery or otherwise: that the defendant doctors cannot learn of the nature of facts of the charges of wrongdoing against them "until plaintiffs either testify on direct examination or consent to waive it." P 2, brief December 30, 1970.
This court is aware of the decision in State v. Brenton, 21 Ohio St.2d 21, and of others holding that in a personal injury action against a third person, the testimony of the doctor is privileged under R. C. 2317.02. A third party is denied access to this confidential information. These precedents do not approach the threshold of the question raised here.
The gist of this case is acts or communications within the privilege. No other party is involved No disclosure to strangers arises. The plaintiffs claim that behind the veil of professional secrecy and of privilege some wrong was done, and that they need not plead and they cannot be compelled to disclose to the court what wrongdoing took place.
Obviously, plaintiffs have no cause of action unless they state it and the defendants cannot respond and should not be required to defend until they are advised of the nature of the claim. Under the Civil Rules and the philosophy behind notice pleading, plaintiffs need not allege, but they must disclose the facts upon discovery so that via this twofold process the case may proceed to answer and trial when the factual issues are known and sharply in focus.
A trial without a complaint and a disclosure of issues would be a denial of due process and of equal rights, a factor which injects a constitutional shadow over the question before us.
As the Supreme Court has indicated, amendment to a statute is a legislative, not a judicial function. It is, however, a judicial function to determine whether the statute applies to a given situation as well as to determine whether in specific situations, not contemplated by the statute, its application, if required, would be unconstitutional as a denial of process, of pleading and of discovery, available to others. There is inherent in this problem a balancing of rights and, when a statute is weighed against a constitutional right or when a limited construction of the statute violates a constitutional right, the superior law prevails.
The problem in this case does not suggest that the mere filing of an action claiming injuries by another is a waiver. This has been decided, at least prior to the Civil Rules, and requires no further authority than the case cited. Nor is there any question as to a waiver as to one physician being construed as a waiver of all. Each defendant here is charged with malpractice so the problem of making up issues and of disclosing facts constituting a cause of action relates equally to all defendants.
In Petrucelli v. Steinharter, 24 Ohio App. 471, the court found no difficulty in holding that in an action by a physician for services evidence of services was not inadmissible as privileged communication. The court was motivated by the knowledge of another case against the physician for malpractice. The case quotes 2 Mechem on Agency, 2d Ed., Section 2313, that an attorney may disclose confidential information when necessary to defend himself in an action by his client. If that be the law as to the professional man, it is equally true as to the patient or client. The Petrucelli case has not been reversed or modified. It is cited to the same effect in In re Butler, 32 Ohio Law Abs. 1, 15, a decision of the Second District consisting of Judges Barnes, Hornbeck and Guernsey. It holds that an attorney is not precluded from testifying in matters pertaining to his interest. Existence of this law in our own district supplies an applicable precedent, if that be necessary, to hold that the privileged communication statute has no application to an adversary action between the two parties to the communication where the testimony is essential either to maintain or to defend the particular action. To deny relief or defense by denying evidence would be unconstitutional.
We agree that in an action against a physician for malpractice the doctor may disclose communications. Hartley v. Calbreath, 127 Mo. App. 559, 106 S.W. 570. And we add that when a patient sues his doctor for malpractice, the patient must disclose in pleadings and in discovery if he wishes to proceed. Such disclosures must be made under the procedures required under due process as applied equally to all. We have no comment beyond disclosures made as required by law or by rule. This being the law, it is unnecessary to resolve the constitutional issues.
Other cases holding that the privilege communication statute does not apply in an action against the physician himself for malpractice include Terior v. Dare, 146 App. Div. 375, 131 N. Y. S. 51; Becknell v. Hosier, 10 Ind. App. 5, 37 N.E. 580; Cramer v. Hurt, 154 Mo. 112, 55 S.W. 258; Awtry v. United States (1961), 27 F. R. D. 399.
It should be noted that State v. Brenton, 21 Ohio St.2d 21, was decided January 7, 1970, prior to the adoption of the Civil Rules, and that Ohio federal decisions apply the waiver rule which is denied in the Brenton case. Mariner v. Great Lakes Dredge and Dock Co., 202 F. Supp. 430; Greene v. Sears Roebuck Company, 40 F. R. D. 14; Burlage v. Haudenshield, 42 F. R. D. 397 (Iowa).
A case without facts is without issues and is as futile of purpose as a plumber without piping or a brick mason without bricks; neither function without the wherewithal upon which they operate. Without bricks a house is not built; without issues a cause does not exist.
There is no need in this case to rely upon waiver, which other states have accepted. Statutes are measured by their purpose; extension beyond that purpose is not justified and must be avoided in the absence of clear language to the contrary. Under the facts of this case the confidences having been exchanged and no third parties being involved the purpose of the statutory rule on privileged communications does not come into play. The logic of this conclusion and the injustice of a rule to the contrary becomes apparent when one seeks to invoke a statute, applicable to third parties, to seal his own or his physician's lips as a result of an act performed or communication exchanged entirely under the cloak of confidence. Coverture has similar protection but if a wife sues her husband the rules of evidence designed to protect that relationship have no application; the rules of evidence yield to reason and purpose, as well as to substantive law.
The doctrine of privilege often imposes hardships in civil and criminal proceedings; however, it is one thing to allow the privileged person to suppress evidence and another to permit him to avoid discovery, proceed and succeed by filling the gap in his own evidence by recourse to what he chooses to suppress. The right to do the latter is denied to the government in criminal cases; no less rule applies to individuals in civil cases. If the government must elect between disclosure or dismissal in matters in which its privilege is supreme it is good reason that individuals share the same experience before the law.
In short, we find that R. C. 2317.02 has no application to the issues or to discovery in an action in malpractice brought by the patient against his physician.
R. C. 2317.02 applies only to the person of (1) the physician and then only to (2) "communications" or "advice" by the physician. R. C. 2317.02 does not impose a limitation upon the patient as a witness.
The motions of plaintiffs are overruled, including the request for a protective order.