Opinion
1 CA-MH 22-0042
02-14-2023
IN RE: MH2022-002881
Maricopa County Legal Defender's Office, Phoenix By Robert S. Shipman Counsel for Appellant. Maricopa County Attorney's Office, Phoenix By Joseph J. Branco Counsel for Appellee.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. MH2022-002881 The Honorable Christian Bell, Judge Pro Tempore
Maricopa County Legal Defender's Office, Phoenix By Robert S. Shipman Counsel for Appellant.
Maricopa County Attorney's Office, Phoenix By Joseph J. Branco Counsel for Appellee.
Presiding Judge David D. Weinzweig delivered the decision of the Court, in which Judge Randall M. Howe and Judge D. Steven Williams joined.
MEMORANDUM DECISION
WEINZWEIG, JUDGE.
¶1 Patient appeals the superior court's order for involuntary mental health treatment, arguing the court violated the physician-patient privilege. Because the error was harmless, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Patient called the police at least thirty-seven times in early 2022 to complain that his neighbor and former boss had been "shooting BB 's at his roof and throwing rocks on his roof [,]" adding that "every car driving by [is] part of the harassment." Patient refused to get a mental health evaluation and became "very agitated" when police asked "him to get help."
¶3 A police detective applied for Patient to be prescreened for a mental health disorder in April 2022. Four days later, a psychiatrist petitioned for a court-ordered involuntary evaluation of Patient, and the superior court issued a detention order for evaluation and notice. Patient was then transported to a medical center, where he was examined by two more psychiatrists, Dr. Tanida Brown and Dr. John Kingsley. A staff psychiatrist named Dr. Orla Weinhold served as Patient's attending physician while at the medical center.
¶4 Both Dr. Brown and Dr. Kingsley concluded that Patient requires involuntary court-ordered treatment at this time. Dr. Brown found the Patient was "acutely delusional, paranoid, and experiencing hallucinations." She offered a probable diagnosis of schizophrenia spectrum disorder and psychotic disorder not yet determined. Dr. Kingsley diagnosed Patient with unspecified bipolar and related disorder, unspecified schizophrenia spectrum disorder and other psychotic disorder. The psychiatrists provided signed affidavits with their findings that (1) Patient was "persistently or acutely disabled . . . as a result of a mental disorder," (2) Patient was "unwilling" or unable to accept treatment voluntarily, and (3) "combined inpatient and outpatient treatment [was] appropriate and available."
¶5 A week later, Dr. Brown petitioned the superior court for an involuntary treatment order. She attached her affidavit to the petition, along with Dr. Kingsley's affidavit.
¶6 The superior court held a two-day hearing. The court admitted the affidavits of Dr. Brown and Dr. Kingsley by stipulation. Patient called Dr. Jack Potts as a witness. Dr. Potts had performed an independent medical evaluation of Patient and recommended voluntary treatment. The State called Dr. Weinhold as a rebuttal witness. Patient objected that Dr. Weinhold's testimony was inadmissible under the physician-patient privilege, but the court overruled that objection, reasoning that Dr. Weinhold was called as a rebuttal witness to Dr. Potts. Dr. Weinhold testified about her observations and recommended court-ordered treatment.
¶7 At hearing's end, the superior court announced its decision from the bench:
The Court does find by clear and convincing evidence that [Patient] is suffering from a mental disorder. As a result he is persistently or acutely disabled, is still in need of psychiatric treatment. He has been either unwilling or unable to accept voluntary treatment, and there are no appropriate and available alternatives to court-ordered treatment at this time.
It is, therefore, ordered directing [Patient] to undergo treatment in a combined inpatient and outpatient treatment program. The maximum time this court order will be in effect is 365 days. The maximum time that inpatient treatment is permissible under this order is 180 days.
¶8 Patient timely appealed. We have jurisdiction. See A.R.S. § 36-546.01.
DISCUSSION
¶9 Patient asks this court to reverse the involuntary treatment order on appeal because the superior court violated his physician-patient privilege. The State contends the physician-patient privilege did not apply, and Patient suffered no prejudice even if it did.
¶10 We will affirm an involuntary treatment order when supported by substantial evidence and will not set aside the superior court's findings unless they are clearly erroneous. In re Appeal in Pima Cnty. Mental Health Serv. Action No. MH-1140-6-93, 176 Ariz. 565, 566 (App. 1993). "To justify a reversal, the trial court's error must have been prejudicial to the substantial rights of the appellant." Ott v. Samaritan Health Serv., 127 Ariz. 485, 489 (App. 1980). "Prejudice will not be presumed but must appear from the record." Id.
I. The Physician-Patient Privilege Applies
¶11 The State presents alternative arguments on the physician-patient privilege. It first argues the privilege did not apply.
¶12 Arizona law recognizes a physician-patient privilege in civil actions, see A.R.S. § 12-2235, to "encourage 'full and frank disclosure of medical history and symptoms by a patient to his doctor,'" Phoenix Children's Hosp., Inc. v. Grant, 228 Ariz. 235, 237 (App. 2011) (quoting Lewin v. Jackson, 108 Ariz. 27, 31 (1972)). Section 12-2235 provides:
In a civil action a physician or surgeon shall not, without the consent of his patient, or the conservator or guardian of the patient, be examined as to any communication made by his patient with reference to any physical or mental disease or disorder or supposed physical or mental disease or disorder or as to any such knowledge obtained by personal examination of the patient.
¶13 We review de novo an issue of statutory interpretation. See Fadely v. Encompass Health Valley of the Sun Rehab. Hosp., 253 Ariz. 515, 521, ¶ 21 (App. 2022). When interpreting a statute, we aim to discern and effect the legislature's intent. Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017). If clear and unambiguous, we apply the statute as written. Id. ("If the statute is subject to only one reasonable interpretation, we apply it without further analysis.") (quoting Wade v. Ariz. State Ret. Sys., 241 Ariz. 559, 561, ¶ 10 (2017)).
¶14 We reject the State's argument because the privilege applied. First, the testimony was offered in a civil action. See In re MH-2008-000867, 225 Ariz. 178, 180 (2010) ("Mental health commitment proceedings, in contrast, are civil actions."). Second, the witness was a physician-a staff psychologist at the medical center where Patient was examined. Third, Patient did not consent to the physician's testimony. And fourth, the physician was questioned about her communication with Patient and knowledge she obtained as his attending physician. See A.R.S. § 12-2235.
¶15 The State counters that Patient had no physician-patient privilege because Arizona law provides that "[t]he clinical record of the patient for the current admission shall be available and may be presented in full or in part as evidence at the request of the court, the county attorney or the patient's attorney." See A.R.S. § 36-539(B). We are unmoved. First, Section 12-2235 provides that physicians may not "be examined," and it neither addresses nor precludes admission of the "clinical record" in involuntary treatment proceedings. Second, the argument is speculative because the State cannot say whether Dr. Weinhold limited her testimony to matters in the "clinical record." See A.R.S. § 36-501(42) (defining "records" as "all communications that are recorded in any form or medium and that relate to patient examination, evaluation or behavioral or mental health treatment. Records include medical records that are prepared by a health care provider or other providers.").
II. Implied Waiver
¶16 The State next argues that Patient waived the physician-patient privilege by implied waiver. The patient holds the privilege, and the patient alone can waive that privilege. See Duquette v. Superior Court, 161 Ariz. 269, 272 (App. 1989). Arizona courts have recognized an implied waiver of privilege for patients who "place[] a particular medical condition at issue by means of a claim or affirmative defense" because this "course of conduct [is] inconsistent with observance of the privilege." See Bain v. Superior Court, 148 Ariz. 331, 334 (1986). An implied waiver is limited to the "privileged communications concerning the specific condition which has been voluntarily placed at issue by the privilege holder." Id. at 335.
¶17 Patient did not voluntarily place his mental health at issue here. The State did. It moved for an involuntary treatment order based on affidavits from two psychiatrists and a police detective. Because the physician-patient privilege was not waived, Dr. Weinhold should not have been allowed to testify.
III. Prejudice
¶18 Patient must show prejudice from the error to justify the reversal of an involuntary treatment order. Ott, 127 Ariz. at 489. And prejudice must appear from the record. Id.; see also Fuentes v. Fuentes, 209 Ariz. 51, 57, ¶¶ 28-29 (App. 2004) (finding "no prejudice and no resulting abuse of discretion in the trial court's admission" of inadmissible evidence because "erroneous admission of evidence that is substantially cumulative may constitute harmless error" if "it did not substantially alter" the final judgment).
¶19 Patient cannot show prejudice on this record. Dr. Brown and Dr. Kingsley provided signed affidavits with their findings that (1) Patient was "persistently or acutely disabled . . . as a result of a mental disorder," (2)Patient was "unwilling" or unable to accept treatment voluntarily, and (3) "combined inpatient and outpatient treatment [was] appropriate and available." See A.R.S. § 36-540(A). Patient's counsel conceded at oral argument that Dr. Weinhold's testimony did not alter or contradict the findings or conclusions of Dr. Brown or Dr. Kingsley. Moreover, in announcing its decision from the bench, the superior court described Dr. Weinhold's testimony as "superfluous." Because Patient shows no prejudice, we affirm the court's involuntary treatment order.
CONCLUSION
¶20 Affirmed.