Opinion
No. 1 CA-SA 13-0319
02-21-2014
FRANCES EDWARDS AND JOHN EDWARDS, Petitioners, v. THE HONORABLE KENTON D. JONES, Respondent Judge, & KMART CORPORATION; NANCY L. RUSSELL n/k/a NANCY L. DONOVAN AND JOHN DOE DONOVAN, A MARRIED COUPLE, Real Parties in Interest.
Jensen Law Firm, PC, Prescott By Christopher W. Jensen, Sean Phelan Counsel for Petitioners Schneider & Onofry, PC, Phoenix By Jason M. Kelly Counsel for Real Parties in Interest
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300CV201200977
The Honorable Kenton D. Jones, Judge
JURISDICTION ACCEPTED, PARTIAL RELIEF GRANTED
COUNSEL
Jensen Law Firm, PC, Prescott
By Christopher W. Jensen, Sean Phelan
Counsel for Petitioners
Schneider & Onofry, PC, Phoenix
By Jason M. Kelly
Counsel for Real Parties in Interest
DECISION ORDER
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Samuel A. Thumma joined. OROZCO, Judge:
¶1 Frances and John Edwards (Petitioners) seek special action relief, challenging the trial court's ruling ordering Petitioners to sign provider-specific authorizations to release records from all medical providers listed as trial witnesses and for all documents relating to Frances Edwards' [Frances] pre-existing sleep apnea, arthritis, and vertigo. Accepting special action jurisdiction, we grant relief to allow for the documents to be reviewed in camera, as specified below, and remand for further proceedings consistent with this decision order.
FACTS AND PROCEDURAL HISTORY
¶2 This action arises out of Frances' fall at a Kmart store. Among injuries she allegedly suffered include a right shoulder injury (resulting in pain and reduced range of motion), injuries to her face and teeth and related lacerations (resulting in sleep dysfunction) and other physical restrictions.
¶3 As relevant here, in formal discovery, Kmart requested "authorizations for the release of medical records, signed by [Frances] and addressed to each health care provider . . . who has treated [Frances] since the accident which is the subject of this litigation, and to each health care provider who has treated [Frances] for five years prior to the accident . . . ." Petitioners objected asserting, among other grounds, the physician-patient privilege (Arizona Revised Statutes (A.R.S.) sections 12-2235 and 13-4062(4)), the medical records privilege (A.R.S. § 12-2292), and hospital records privilege (A.R.S. § 36-404). Petitioners noted, "for [Kmart] to 'demand' signed authorizations before [Petitioners] can determine whether or not any claims of privilege are appropriate is premature." Petitioners, however, did not provide a log for documents they claimed were privileged.
¶4 After informal attempts to resolve the dispute failed, Kmart filed a Motion to Compel Production of Authorizations to Independently Obtain [Frances'] Medical Records. Kmart's motion sought Frances' medical records from three treating providers and also sought to review all of the records from the medical providers listed by Petitioners as trial witnesses. Petitioners opposed the motion, and filed a Motion for Protective Order, arguing that unrestricted authorizations exceeded the scope of any implied waiver resulting from the filing of the action, that Petitioners had "voluntarily disclosed all relevant and all requested medical records, reports and invoices," and that the proper procedure for the unrestricted authorizations requested would be an in camera review by the court of responsive medical records for which privilege is claimed.
¶5 After considering the filings and hearing oral argument, the trial court granted Kmart's Motion to Compel and denied Petitioners' Motion for a Protective Order. The trial court noted that Kmart was seeking medical authorizations for providers listed by Frances as trial witnesses for medical records pertaining to pre-existing conditions (e.g., vertigo, sleep apnea, and a pre-existing degenerative arthritic condition) in order to determine whether these conditions continue. This special action followed.
DISCUSSION
I. Jurisdiction
¶6 "Special action jurisdiction is highly discretionary." Catrone v. Miles, 215 Ariz. 446, 450, ¶ 8, 160 P.3d 1204, 1208 (App. 2007). However, jurisdiction is warranted where no adequate remedy is available by way of appeal. Id. Review of an order compelling discovery over an objection of a party asserting a privilege is appropriate when there is no "equally plain, speedy, and adequate remedy by appeal." See Ariz. R.P. Spec. Act. 1 & 3; see also Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 252, ¶ 3, 63 P.3d 282, 283 (2009); Sun Health Corp. v. Meyers, 205 Ariz. 315, 317, ¶ 2, 70 P.3d 444, 446 (App. 2003) (noting an appeal offers no adequate remedy for the prior disclosure of privileged information). Accordingly, in the exercise of our discretion, we accept special action jurisdiction. See, e.g., Blazek v. Super. Ct. In and For Cnty. of Maricopa, 177 Ariz. 535, 536, 869 P.2d 509, 510 (App. 1994) (noting special action jurisdiction is an appropriate means of relief when the trial court orders a party to disclose what is or may be privileged).
II. Merits of the Petition
¶7 When a trial court has ruled on a discovery-related issue, this court generally will not disturb the ruling absent an abuse of discretion. Blazek, 177 Ariz. at 537, 869 P.2d at 511. Moreover, within the context of a special action, this court usually will not grant relief absent a finding that the trial court abused its discretion or a finding that the trial court exceeded its legal authority. Twin City Fire Ins., 204 Ariz. at 254, ¶ 10, 63 P.3d at 285; see also Ariz. R.P. Spec. Act. 3.
A. Physician-Patient Privilege, Medical Authorizations, and Disclosure of Frances' Medical Records
¶8 Various statutory provisions protect the privacy of a patient's communications with medical professionals and the patient's medical records. See, e.g., A.R.S. § 12-2235 (2003) (requiring a patient's consent in order for a physician to testify in a civil action regarding patient communications); Id. § 12-2292 (Supp. 2012) (requiring a patient's written authorization in order to disclose a patient's medical records, which are privileged and confidential); Id. § 36-404 (2003) (limiting disclosure of hospital records that identify a patient or the patient's family). These protections, however, are not absolute. A court may deem that a patient's privilege was waived, or disclosure of privileged communications and records was consented to, when a party places a medical condition at issue as a claim, affirmative defense, or otherwise "pursuing a course of conduct which is inconsistent with the observance of the privilege." Blazek, 177 Ariz. at 541, 869 P.2d at 515. When a litigant who holds a physician-patient privilege places a health condition at issue in the litigant's claim, the litigant has then implicitly waived the right to "object to discovery of pertinent medical information." Duquette v. Super. Ct. In and For Cnty. of Maricopa, 161 Ariz. 269, 272, 778 P.2d 634, 637 (App. 1989). A party may not select to invoke the privilege to "disclose documents or testimony favorable to that party while failing to disclose cognate material unfavorable to that party." Danielson v. Super. Ct. In and For Maricopa Cnty., 157 Ariz. 41, 43, 754 P.2d 1145, 1147 (App. 1987).
¶9 While the record supports Petitioners' assertion that they have disclosed various medical records; we disagree that such disclosure negates the need for medical authorizations so that Kmart may do an independent investigation. We further disagree with Petitioners that Kmart's authorization requests are "unlimited" in scope. Kmart has requested (1) medical authorizations for the medical providers that Petitioners listed as witnesses testifying on their behalf at trial in order to (2) obtain medical records that "pertain to pre-existing conditions, e.g., vertigo, sleep apnea, and a pre-existing degenerative arthritic condition, in order to determine whether these conditions still exist and afflict [Frances]." These requests are not "unlimited" in scope.
¶10 By filing this action, Frances has placed various health conditions at issue, not simply the immediate results of her fall. Under Bain, Frances has thus waived her privilege protecting medical communications related to either her claim or Kmart's affirmative defenses. See Bain v. Super. Ct. In and For Maricopa Cnty., 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986). Consequently, Petitioners may not preclude Kmart from discovering her medical records, which are relevant to the case, where any privilege was waived. Petitioners further argue that Kmart failed to provide evidence in the record that she "ever 'selectively' chose which medical records to disclose and produce." Nevertheless, Kmart has presented evidence that it discovered relevant medical conditions that were not initially disclosed, which has led to Kmart's desire to directly subpoena medical records from Frances' medical providers.
¶11 Based on the discovery dispute before us and the record provided, we find the trial court did not abuse its discretion in granting Kmart's Motion to Compel or in denying Petitioners' Motion for a Protective Order. We, therefore, affirm the trial court ruling.
B. The Need For In Camera Review of Frances' Medical Records
¶12 In Blazek, we recognized that a party "could be prejudiced by the disclosure of confidential information that is not relevant to [the] case." 177 Ariz. at 542, 869 P.2d at 516. Where the parties cannot informally agree to a proper procedure, before allowing an opposing party complete access to medical records, a trial court should conduct an in camera review of the records to determine whether they contain information that may lead "to admissible evidence concerning [Petitioners'] claims." See id. This process is not unlike the informal process Kmart suggested before even raising the matter with the court.
¶13 Under this process, after Frances has signed the specific requested medical authorizations, and Kmart has subpoenaed the medical records, before reviewing any documents received, Kmart is to provide all such documents to Petitioners for their review. Given their allegations in this case, it may be that Petitioners will not claim privilege for any of those documents, meaning the documents would then need to be produced to Kmart immediately and without redaction. On the other hand, if Petitioners do claim any of the medical records are privileged without any waiver, they would be required to (1) give the unprivileged documents (or portions of documents with privileged information redacted) to Kmart and (2) as to any claim of privilege, provide to Kmart a privilege log. See Ariz. R. Civ. P. 26(f). If Kmart disputes any privilege claim, it would then be appropriate for the trial court to conduct an in camera review of the purportedly privileged documents to determine whether the documents are, in fact, privileged. See Blazek, 177 Ariz. at 542, 869 P.2d at 516.
III. Attorney Fees
¶14 Both parties have requested attorney fees for this special action pursuant to Rule 4(g) of the Arizona Rules of Procedure for Special Actions. In our discretion, we decline to award attorney fees to either party.
¶15 As the prevailing party, Kmart is awarded its costs pursuant to A.R.S. § 12-341 (2003) upon its compliance with ARCAP 21.
CONCLUSION
¶16 We accept jurisdiction, grant relief in part and remand for the parties to proceed in a manner consistent with this decision.