Opinion
2875 EDA 2019 J-S29033-21
12-08-2021
KAREN TAVELLA-ZIRILLI AND DOMINIC ZIRILLI, H/W Appellants v. RATNER COMPANIES, L.C. (INCORRECTLY IDENTIFIED AS RATNER COMPANIES D/B/A HAIR CUTTERY), CREATIVE HAIRDRESSERS, INC. D/B/A HAIR CUTTERY (INCORRECTLY IDENTIFIED AS HAIR CUTTERY), AND STEPHANIE RICKARDS, Appellees
Appeal from the Order Dated August 8, 2019 in the Court of Common Pleas of Philadelphia County Civil Division at No(s): 180501567
BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E. [*]
OPINION
STEVENS, P.J.E.
Appellants, Karen Tavella-Zirilli and Dominic Zirilli (the Zirillis), appeal from an August 8, 2019, order, which granted in part the motion filed by Appellees, Ratner Companies, L.C. and Creative Hairdressers, Inc. d/b/a Hair Cuttery, to compel production of mental health records and ordered the Zirillis to provide unredacted copies of the records for in camera review by a special master for a privilege determination. For the reasons set forth below, we reverse.
On May 17, 2018, the Zirillis filed a negligence action against Appellees. According to the Zirillis, Ms. Tavella-Zirilli suffered injuries after she received a lengthy hair color treatment at a Hair Cuttery salon, including chemical burns to her scalp; permanent scarring from a rash that developed on her scalp and spread to her neck, face, arms, and chest; associated pain; headaches; neuropathy; a stress-induced relapse of smoking; loss of life's pleasures; mental anguish; embarrassment; and emotional distress. Amended Complaint, 7/17/2018, at 7-8. Mr. Zirilli asserted a loss of consortium claim. Id. at 8-9.
As part of discovery, Appellees served interrogatories and a request for production of documents. Appellees received medical records from Ms. Tavella-Zirilli's primary physician wherein the physician observed, prior to the salon hair color treatment at issue, areas of Ms. Tavella-Zirilli's skin with pockmarks and excoriations. The primary physician's records also referenced Ms. Tavella-Zirilli's treatment with a mental health provider, mental health conditions, and medications that pre-date her salon visit. Similarly, medical records from Ms. Tavella-Zirilli's dermatologist referenced observations of excoriations and scars as well as a mental health condition that affects the skin.
Further, as part of this action, Ms. Tavella-Zirilli submitted to an independent psychological examination. The examining psychologist indicated that, in addition to what was already contained in the aforementioned medical records, he believed Ms. Tavella-Zirilli may have also been diagnosed previously with other mental health conditions that affect the skin, scalp, and hair. With respect to mental health treatment, the Zirillis answered Appellees' interrogatories without objection, and responded to the production request by stating that they had already provided all requested documents in their possession.
Subsequently, during their depositions the Zirillis provided additional information about marriage counseling they had undergone and mental health treatment Ms. Tavella-Zirilli had received at Springfield Psychological, which prompted Appellees to provide notice of their intent to serve a non-party subpoena on Springfield Psychological and one of its providers to obtain records of the Zirillis' treatment. The Zirillis objected, and Appellees filed a motion to strike. The trial court ordered Springfield Psychological to produce, to the Zirilli's counsel, all records in its possession that related to treatment provided to the Zirillis.
After the Zirilli's counsel received the records, the Zirillis filed a privilege log, which indicated that they had received two sets of mental health records from Springfield Psychological. The first set, marriage counseling records relating to the Zirillis, was produced. The second set, Ms. Tavella-Zirilli's mental health records, is the subject of this appeal. The Zirillis objected to producing Ms. Tavella-Zirilli's mental health records on the basis that they were privileged and protected from disclosure by the Mental Health Procedures Act ("MHPA"), 50 P.S. § 7101-7503, and/or the psychiatrist/psychologist-patient privilege, codified at 42 Pa.C.S.A. § 5944 of the Judicial Code.
The Zirillis redacted a part of one page of the marriage counseling records to protect the privacy of third parties. Appellees do not seek to compel production of that redacted record.
Appellees moved to strike the privilege objections and compel in camera review of the records, to which the Zirillis responded. The trial court appointed a special master to determine privilege. The special master held a conference on August 7, 2019. According to the Zirillis, the special master determined at the conference that Ms. Tavella-Zirilli had not waived her right to assert the psychiatrist/psychologist-patient privilege, but indicated he nonetheless wanted to conduct an in camera review of her mental health records.
There is no transcript of this conference.
The Zirillis did not provide the records to the special master for in camera review. On August 8, 2019, the trial court granted Appellees' motion to strike, compelled production of Ms. Tavella-Zirilli's mental health records, and ordered the Zirillis to provide unredacted copies of all of the records for in camera review by the special master to make a privilege determination.
This timely-filed appeal followed., The court did not order the Zirillis to file a concise statement pursuant to Pa.R.A.P. 1925(b) and none was filed. The trial court complied with Pa.R.A.P. 1925(a).
On November 1, 2019, this Court directed the Zirillis to show cause as to why the appeal should not be quashed as an appeal from a non-final order. The Zirillis responded and on November 15, 2019, this Court discharged the order and referred the matter to this panel. We discuss the issue of appealability infra.
Upon notice that Appellees had initiated bankruptcy proceedings in the State of Maryland, this Court stayed the appeal on May 14, 2020, in accordance with the automatic stay provision of the U.S. Bankruptcy Code, 11 U.S. § 362. Order, 5/14/20. The bankruptcy stay has been lifted and the matter is now ready for disposition. Order, 3/19/21.
The Honorable John M. Younge, who entered the August 8, 2019, order that is the subject of this appeal, was appointed subsequently to the U.S. District Court for the Eastern District of Pennsylvania. The Honorable Denis P. Cohen issued the Rule 1925(a) opinion.
On appeal, the Zirillis claim that Ms. Tavella-Zirilli's mental health records from Springfield Psychological are privileged and not subject to in camera review. They raise the following two issues for our review:
1. Whether a trial court Order compelling production of privileged mental health records for a in camera review constitutes a collateral order appealable as of right and reversible error, as held by the Pennsylvania Superior Court inter alia in Farrell v. Regola, 150 A.3d 87 (2016).
2. Whether a plaintiff does not waive the psychiatrist/psychologist-patient privilege regarding her personal mental health records merely by filing a lawsuit, where she does not allege to have suffered any mental illness nor to have incurred mental health treatment expenses as the result of the physical injury giving rise to the lawsuit, as held by the Pennsylvania Superior Court inter alia in Gormley v. Edgar, 995 A.2d 1197 (2010).Appellants' Brief at 9 (suggested answers omitted; citation format altered).
Appealability
We begin with the first issue of whether the order from which the Zirillis appeal is appealable in that appealability implicates our jurisdiction. In the Interest of J.M., 219 A.3d 645, 650 (Pa. Super. 2019). "Jurisdiction is purely a question of law; the appellate standard of review is de novo and the scope of review plenary." Id. (citation and internal quotation marks omitted). To be appealable, the order must be: (1) a final order, Pa.R.A.P. 341-42; (2) an interlocutory order appealable by right or permission, 42 Pa.C.S.A. § 702(a)-(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P. 313. Rule 313 provides as follows:
(a) General rule.--An appeal may be taken as of right from a collateral order of a trial court or other government unit.
(b) Definition.--A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.Pa.R.A.P. 313.
It is well settled that an order mandating disclosure of records subject to privilege, including mental health records, is appealable as a collateral order pursuant to Rule 313. Commonwealth v. Segarra, 228 A.3d 943, 948-49 (Pa. Super. 2020); Pasquini v. Fairmount Behavioral Health Sys., 230 A.3d 1190, 1194 (Pa. Super. 2020). Thus, the order at issue here is appealable as a collateral order.
Statutory Privilege
Having determined that this Court has jurisdiction over this appeal pursuant to the collateral order doctrine, we now proceed to examine the second issue of whether the Zirillis must produce for in camera review the records of Ms. Tavella-Zirilli's counseling sessions at Springfield Psychological. "In reviewing the propriety of a discovery order, we determine whether the trial court committed an abuse of discretion." Pasquini, 230 A.3d at 1194 (citation and quotation marks omitted). However, "the privilege asserted is codified, and thus, 'the interpretation of a statute is a question of law, resulting in a standard of review that is de novo and a scope of review that is plenary.'" Segarra, 228 A.3d at 950, quoting Farrell, 150 A.3d at 96.
As noted, the Zirillis contend the trial court's August 8, 2019, order impermissibly requires them to disclose privileged records for in camera review. Specifically, they argue that Ms. Tavella-Zirilli's mental health records are protected from disclosure under the MHPA and the psychiatrist/psychologist-patient privilege, that they have not implicitly waived privilege by initiating this negligence action or seeking damages for pain and suffering, and that there are less intrusive means available to obtain the same information. Appellants' Brief at 18-26.
MHPA
We first examine whether Ms. Tavella-Zirilli's records are protected by the MHPA, keeping in mind that the MPHA is to be strictly construed. Segarra, 228 A.3d at 950 (citation omitted). "Section 7111 of the MHPA mandates that all documentation concerning persons in treatment be kept confidential, in the absence of patient consent, except in four limited circumstances." Id. at 951 (citation and internal quotation marks omitted); 50 P.S. § 7111(a).
However, section 7103 of the MHPA specifies that "[t]his act establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons." 50 P.S. § 7103. While the Zirillis reference the MHPA throughout their brief, they do not present any argument as to its applicability. See Appellants' Brief at 4, 14, 17-21, 23-36; compare Appellees' Brief at 19-20 (arguing Ms. Tavella-Zirilli's records are outside the scope of the MHPA). There is nothing in the record to indicate that Ms. Tavella-Zirilli's treatment at Springfield Psychological was anything but voluntary outpatient treatment. Accordingly, Ms. Tavella-Zirilli's mental health records are outside the scope the MHPA and not protected from disclosure under this statute. See Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super. 2010) (holding voluntary outpatient mental health treatment records are not encompassed within the protection of the MHPA).
The trial court erroneously found the MHPA applicable herein when it concluded the Zirillis waived their privilege thereunder. See Trial Court Opinion, 4/16/2021, at 5-9.
Psychiatrist/Psychologist-Patient Privilege
We next analyze the psychiatrist/psychologist-patient privilege, 42 Pa.C.S.A. § 5944. The Zirillis argue that this privilege protects Ms. Tavella-Zirilli's mental health records from disclosure of any kind, including in camera review. Appellants' Brief at 4, 9, 14-15, 17-18, 21, 25. The statute provides as follows:
No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), [63 P.S. § 1201 et seq., ] to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.42 Pa.C.S.A. § 5944 (footnote omitted).
The purpose of the psychiatrist/psychologist-patient privilege is "to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure." Gormley, 995 A.2d at 1204 (citation and quotation marks omitted). "The privilege is based upon a strong public policy designed to encourage and promote effective treatment and to insulate the client's private thoughts from public disclosure." Id. (citation omitted). "This Court holds this privilege in the highest regard, recognizing that such confidential statements are the key to the deepest, most intimate thoughts of an individual seeking solace and treatment. However, such confidential communications are only protected to the same extent as those between an attorney and his client." Id.
The psychiatrist/psychologist-patient privilege "is designed to protect confidential communications made and information given by the client to the psychotherapist in the course of treatment, but does not protect the psychotherapist's own opinion, observations, diagnosis, or treatment alternatives." Segarra, 228 A.3d at 953-54 (quoting Farrell, 150 A.3d at 97-98). The psychiatrist/psychologist-patient privilege "applies not only to psychiatrists and psychologists, but to any member of a patient's treatment team." Segarra, 228 A.3d at 954 (citation omitted). "Moreover, in cases where the section 5944 privilege has been found to apply, case law has precluded material from being subjected to even in camera review by the trial courts." Segarra, 228 A.3d at 954 (citation, brackets, and quotation marks omitted); see also Commonwealth v. Kyle, 533 A.2d 120, 131 (Pa. Super. 1987) ("Subjecting the confidential file to in camera review by the trial court (as well as the appellate courts and staff members) would jeopardize the treatment process and undermine the public interests supporting the [psychiatrist/psychologist-patient] privilege. Simply stated, an absolute privilege of this type and in these circumstances requires absolute confidentiality.").
[*]Former Justice specially assigned to the Superior Court.