Opinion
A164770
02-27-2023
Conservatorship of the Person of I.G. v. I.G., Objector and Appellant. ANNA M. ROTH, as Conservator, Petitioner and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSP21-01235
MARGULIES, ACTING P. J.
I.G. appeals from an order of conservatorship under the Lanterman-Petris-Short Act (LPS; Welf &Inst. Code, § 5000 et seq.). Following a bench trial, the court expressly found I.G. was gravely disabled. On appeal, I.G. contends the grave disability finding must be reversed because the trial court erred in admitting into evidence certain entries in his medical records that he contends are inadmissible hearsay. He further asserts the inclusion of these records materially prejudiced his case. We disagree and affirm the order.
All statutory references to are to the Welfare and Institutions Code.
I. BACKGROUND
The Public Guardian for the Contra Costa County Health Services Department (Public Guardian) filed a petition for appointment as conservator of I.G. pursuant to the LPS. The petition alleged I.G. was gravely disabled due to a mental disorder and unwilling to accept, or incapable of accepting, treatment voluntarily. The petition further alleged I.G. lacked decisional capacity.
On March 8, 2022, the court conducted a trial regarding the Public Guardian's petition. At the outset, the court asked counsel whether they had any objections to two sets of medical records submitted to the court as exhibits: John Muir Behavioral Health Center medical records (John Muir; exhibit 2) and Crestwood Behavioral Health Vallejo medical records (Crestwood; exhibit 3). I.G. raised two general categories of objections. First, he questioned whether the author of certain entries had directly observed or had personal knowledge of the described events. He claimed such entries involved multiple layers of hearsay for which the business record exception would not apply. Second, I.G. argued certain entries involved clinical opinion incorporating a degree of subjective interpretation, and did not merely reflect a record of specific actions or behaviors.
I.G. also argued to the trial court that certain entries contained aspirations, programmatic goals, or staff intentions, which do not constitute a clinical impression and are not within the business record exception. However, I.G. does not raise this argument on appeal.
In response, county counsel argued medical records, such as those in this matter and commonly used in conservatorship matters, regularly contain staff-to-staff communications that courts have found to be trustworthy and fall within the business record exception to hearsay. County counsel further noted the material referenced by I.G. as "clinical opinion" simply reflect normal medical field terminology and shorthand, and do not constitute diagnoses.
At trial, Jennifer Weinstein, a clinical psychologist, testified as an expert regarding I.G.'s mental condition. Dr. Weinstein was trained in psychodiagnosis, she has qualified as an expert witness in the field of psychology over a thousand times, and she has evaluated individuals for grave disability over a thousand times. In evaluating an individual for grave disability, Dr. Weinstein testified she relies on placement records, medical records, and a clinical interview. She also stated she sometimes speaks with the conservator, family members, or current treatment providers.
Here, Dr. Weinstein testified she interviewed I.G. for approximately 40 minutes prior to trial. She also reviewed his medical records from John Muir and Crestwood, and spoke with the conservator and I.G.'s mother. These medical records identified medications prescribed to I.G. and contained case summaries, progress notes of daily staff observations, and other observations of staff at the two facilities while I.G. was in their care.
During her interview with I.G., Dr. Weinstein observed multiple symptoms of schizophrenia including that he had a limited ability to engage in conversation, could provide only limited insight into his psychiatric condition, presented a flattened affect, and appeared internally preoccupied. Dr. Weinstein also noted I.G. had a "very limited understanding of any previous mental health history or treatment history." At the time of the hearing, I.G. was prescribed Depakote, a mood stabilizer, and two antipsychotics, Haldol and Zyprexa. However, I.G. was unable to identify the names of the medications he was prescribed, stated he did not need to take the medications, and informed Dr. Weinstein he would not take his prescribed medicines if he were released into the community. I.G. also expressed uncertainty about whether he would obtain a psychiatrist or case manager if he were not conserved. Based on his statements and his "resistan[ce] to medication," Dr. Weinstein concluded that it was "highly unlikely that he would continue to take his medications" if released.
Based upon her interview with I.G. and the medical records, Dr. Weinstein diagnosed I.G. with schizophrenia. Dr. Weinstein explained such a diagnosis "means that an individual has demonstrated two or more of a list of symptoms for over a period of one month, one of which symptoms has to be grossly disorganized speech, paranoid delusions or . . . hallucinations." The other symptoms include "lack of motivation, poor activities of daily living or poor hygiene, inappropriate emotional expression or flat affect, disorganized behavior, [or] catatonic behavior." She also explained schizophrenia is a "chronic" disorder, meaning that "it's a longer term diagnosis" as "it doesn't go away" but merely "ebb[s] and flow[s]." Dr. Weinstein explained I.G.'s symptoms would "severely interfere" and "severely impair his ability to procure food, clothing and shelter for himself."
County counsel sought to introduce the John Muir (exhibit 2) and Crestwood (exhibit 3) medical records. I.G. reasserted his general objections to the records, arguing that "there are entries within [the records] that fall beyond the evidentiary requirements, specifically hearsay and foundation." He asked the court to "reserve ruling as to the admissibility of the documents pending the examination of the witness and the objections as they come through the testimony."
The court rejected his request, noting "as a whole, the exhibits fit within the business records exception and are admissible," but "[w]ith respect to any particular objections for redactions, [she would] not make those rulings until those objections have been made." I.G. did not raise any objections to the general trustworthiness of the documents or their method of preparation.
I.G. subsequently objected to the admission of certain parts of both medical records during Dr. Weinstein's testimony. As relevant to this appeal, I.G. raised 11 objections to 10 entries, all of which were overruled except one.
On appeal, I.G. objected to the following entries from exhibit 2: August 2021 (contained within a paragraph entitled "Reason for Admission"), and August 8, 9, 18, and 23, 2021. He also objected to the following entries from exhibit 3: October 9, 2021, January 1 and 18, 2022, and February 2 and 6, 2022.
County counsel began by asking Dr. Weinstein about a paragraph in exhibit 2 entitled, "Reason for Admission." That paragraph "indicates: 'Patient was disorganized responding to internal stimuli, incoherent at PES.'" I.G. objected to the entry based on lack of personal knowledge. I.G. highlighted how the entry was from John Muir but "is reporting what had happened at PES. Meaning . . . the other facility." The court sustained the objection and stated, "I will redact and not consider that statement."
Per I.G.'s opening brief on appeal, "PES" stands for "psychiatric emergency services."
County counsel then asked Dr. Weinstein about a description contained within another paragraph in that same entry, which stated, "This interview is limited by the patient's acute psychosis and disorganization." Counsel noted the entry described I.G." 'as presenting dishevelled [sic], bizarre, smiling, laughing and rambling incoherently,'" and queried Dr. Weinstein as to the impact of that entry on her conclusions. I.G. objected to the phrases "acute psychosis" and "disorganization," as constituting improper clinical opinions. County counsel countered that the objection of "clinical opinion" was not "a legal standard or any real part of the Evidence Code." County counsel further argued these phrases were "term[s] of art used by people in the mental health field to describe psychotic behaviors" and constitute "an observation by the report writer who interviewed [I.G.]." The court overruled the objection, clarifying that it accepted the terms as "observations of behavior rather than overall diagnosis." The court further explained, "[T]he key here in this sentence is the narrator's observation of how the interview is limited." In accordance with this ruling, Dr. Weinstein then testified that "psychosis" and "disorganization," among other observations, constitute "a description of his psychological presentation back in August of 2021 in which he is exhibiting symptoms of schizophrenia that are the acute end of the spectrum."
County counsel next directed Dr. Weinstein to an August 8, 2021 entry, which described I.G. engaging in "predatory behaviors towards female peers, fixated, dancing near them, trying to enter female [patient] rooms and requires repeated redirection and . . . 1:1 observation." County counsel asked Dr. Weinstein whether this behavior was "significant in your analysis of [I.G.'s] mental health condition and/or whether or not he is gravely disabled." I.G. objected due to lack of personal knowledge, commenting, "[I]t's not attributed to any particular author or how it was observed by the person who ultimately related it to Dr. Mundi." I.G. also claimed the phrases "predatory" and "requiring redirection" were clinical opinions rather than merely a description of behavior. The court overruled these objections "[g]iven the context of the descriptor words that follow predatory behavior and also the nature of what that describes." The court also found "these entries to be trustworthy in the way that they are conveyed as documented by hospital staff."
Dr. Ameek S. Mundi appears to be a physician at John Muir, who is identified as preparing the discharge summary contained in the John Muir medical records.
County counsel directed Dr. Weinstein to an August 9, 2021 entry, in which I.G. was described as "rambl[ing] incoherently about being a wizard" and "talking to his father" despite no one else being present in the room. I.G. again objected for lack of personal knowledge, arguing that "this would be the entry of another that's reported by Dr. Mundi." The court overruled the objection, noting the entry "appears to have been entered by someone contemporaneous with that event given the word 'currently.' I do not take it necessarily being Dr. Mundi . . ., but rather of hospital staff directly observing."
County counsel then directed Dr. Weinstein to an August 18, 2021 entry, which noted I.G.'s state as "psychotic and disorganized" and "RTIS" or "[r]esponding to external stimuli." The entry further highlighted that I.G. "refus[ed] labs" and "[r]efus[ed] [H]aldol dec." I.G. objected, asserting the comment that he refused labs was both an improper clinical opinion and lacked personal knowledge. He also objected to the remainder of the entry as to lack of personal knowledge. The court overruled I.G.'s objection without comment.
County counsel next asked Dr. Weinstein if the behavior I.G. exhibited in an August 23, 2021 entry, where the record stated he was engaging in "problematic behavior with nursing staff," including "smearing spit on the window" and attempting to enter the medication room without authorization, was important in her analysis of I.G.'s mental health. I.G. objected for lack of personal knowledge because the entry described "something that had happened yesterday ....It's describing something before and then continues on [to] another occasion [involving I.G.] trying to come into the medication room," but does not "even specif[y] when at all that occurred." The court again overruled I.G.'s objection.
Next, county counsel directed Dr. Weinstein to an October 9, 2021 entry, where during an interview with his psychiatrist, I.G. "admitted to not showering since his admission," which was on September 30. I.G. objected due to lack of personal knowledge because, "The author of the note is indicated as LVN and is describing interaction with the psychiatrist." County counsel argued in response that the entry constitutes an admissible staff-to-staff medical business record. The trial court overruled the objection.
County counsel then asked Dr. Weinstein about a January 1, 2022 interdisciplinary team meeting note, which stated: "[I.G.] has been on baseline behaviors. Resident has been staying in his room for the most part ....Resident has not been taking his medication on time for the last 90 days." I.G. objected to the entry based on personal knowledge because, "As it's described, it's what he has been doing over the course of a period as opposed to specific entries that could be examined for their trustworthiness." He also objected to the phrase "baseline behaviors" as constituting a clinical opinion. At the court's request, Dr. Weinstein testified regarding the meaning of the term "baseline" in the context of these types of medical records, and the court overruled I.G.'s objections.
County counsel referred Dr. Weinstein to two entries dated January 18, and February 7, 2022. Both entries discussed in part I.G.'s unwillingness to take his medications. Specifically, the January 18 entry noted I.G. "was prompted several times for his morning medications....but [I.G.] state[d] 'I don't want to take them right now ....'" The February 7 entry similarly stated I.G. "was prompted multiple times for AM medication administration" but I.G. "ignored staff completely numerous times, putting covers over his face each time he was prompted for meds." I.G. objected to the February 7 entry on personal knowledge grounds, emphasizing that it was a "late entry" for an event occurring on February 6. I.G. further objected to the entries as "compound" and questioned "whether the author had observed [the event]." The court overruled the objection based on a "[s]imilar rationale" as previously stated.
Finally, county counsel asked Dr. Weinstein about the importance of a February 2, 2022 entry "to [her] evaluation of [I.G.'s] mental health." That entry noted I.G. was "observed to be sexually inappropriate to the staff and other female staff" by following closely behind them with his "pants half way down and blocking [the] way by opening up both hands [and] making weird sounds and saying 'I thought you like me.'" I.G. objected based on lack of personal knowledge, emphasizing "this is a more serious accusation . . ., which highlights the problematic nature of allowing an admission of information without clarity of how the author had learned it and providing the opportunity to cross-examine that person." I.G. argued such cross-examination was necessary because essential information was missing from the entry, such as how long it lasted and who else was present. The court overruled the objection, noting the entry contains "reports of staff reporting observed conduct" and explaining I.G.'s objection "goes to weight, not admissibility."
Based upon Dr. Weinstein's testimony, the court found I.G. to be gravely disabled and granted the Public Guardian's petition to be appointed the conservator for I.G. I.G. timely appealed.
II. DISCUSSION
I.G. contends the trial court admitted certain psychiatric records that contained inadmissible hearsay. He further claims the inclusion of these records materially prejudiced him. I.G. relies heavily on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) to support his argument.
"The [LPS] . . . governs involuntary treatment of the mentally ill in California. Under the Act, 'A conservator of the person, of the estate, or of the person and the estate may be appointed for any person who is gravely disabled as a result of mental disorder ....' (§ 5350.) 'Gravely disabled' .... means, 'A condition in which a person, as a result of a mental disorder, Is unable to provide for his or her basic personal needs for food, clothing, or shelter . . .' (§ 5008, subd. (h)) with the additional proviso that 'a person is not "gravely disabled" if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person's basic personal needs for food, clothing, or shelter' (§ 5350, subd. (e)(1))." (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 159-160.)
Section 5008.2, subdivision (a) provides, in relevant part: "[T]he historical course of the person's mental disorder, as determined by available relevant information about the course of the person's mental disorder, shall be considered when it has a direct bearing on the determination of whether the person is a danger to others, or to himself or herself, or is gravely disabled, as a result of a mental disorder. The historical course shall include, but is not limited to, evidence presented by persons who have provided, or are providing, mental health or related support services to the patient, the patient's medical records as presented to the court, including psychiatric records, or evidence voluntarily presented by family members, the patient, or any other person designated by the patient." (§ 5008.2, subd. (a).)
In Sanchez, our Supreme Court held, "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth." (Sanchez, supra, 63 Cal.4th at p. 686 &fn. 13.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Additionally, "multiple levels of hearsay must each fall within an applicable hearsay exception." (Id. at p. 684, fn. 11.) However, experts may "testify about more generalized information to help jurors understand the significance of those case-specific facts" and may "give an opinion about what those facts may mean." (Id. at p. 676.)
In Conservatorship of S.A. (2018) 25 Cal.App.5th 438 (S.A.), the Second District Court of Appeal applied Sanchez to mental health records admitted in conservatorship proceedings. The court explained that medical records can fall under the business records exception to hearsay when "(1) the writing was made in the regular course of business; (2) at or near the time of the act, condition, or event; (3) the custodian or other qualified witness testifies to its identity and mode of preparation; and (4) the source of information and mode and method and time of preparation indicate trustworthiness." (S.A., at p. 447.) "These requirements may be satisfied by affidavit." (Ibid.; see Evid. Code, § 1561.)
In S.A., S.A. sought to "preclude Public Guardian's experts from testifying to" certain material contained in records of her "care and treatment at [a county psychiatric health facility] and at a board and care facility." (S.A., supra, 25 Cal.App.5th at pp. 441-442.) S.A. argued the records "were inadmissible hearsay" and "impermissibly relayed to the jury case-specific facts within them that were not otherwise proven." (Id. at p. 447.) The court rejected S.A.'s argument, noting the trial court's finding that the records "were 'clearly the reports of persons and staff, licensed psychiatric technicians, . . . who are reporting [S.A.'s] observed conduct' and the board and care facility records were 'obviously the observations . . . of the people in the psychiatric program.'" (Id. at p. 448.) Accordingly, the court held "S.A.'s medical records, as redacted, were admissible under the business records exception to prove the acts, conditions, and events recorded therein." (Id. at p. 447; accord, People v. Orey (2021) 63 Cal.App.5th 529, 551-552 ["trustworthiness may be established by showing that a written report is based on the observations of a public employee who has a duty to observe the events and to report and record them accurately"].) The court further noted, "The trial court has wide discretion to determine whether there is a sufficient foundation to qualify evidence as a business record; we will overturn its decision to admit such records only upon a clear showing of abuse." (S.A., at p. 447.)
A. Hearsay Objections
I.G.'s hearsay objections fall under two general categories: lack of personal knowledge and improper clinical opinions. We address each in turn.
I.G.'s objections due to lack of personal knowledge are based on his contention that the records improperly rely upon the observations of other individuals who are not the record creators. For example, the August 9, 2021 entry indicated it was prepared by Dr. Mundi, a physician on staff. I.G. objects to this entry because it is an "entry of another that's reported by Dr. Mundi." He raises similar personal knowledge objections to multiple other entries in both exhibits 2 and 3.
Specifically, I.G. objected for lack of personal knowledge to the entry in exhibit 2 labeled, "Reason for Admission" from August 2021 and other entries dated August 8, 9, 18, and 23, 2021. From exhibit 3, I.G. objected based on lack of personal knowledge to entries dated October 9, 2021, January 1 and 18, 2022, and February 2 and 7, 2022.
We find S.A. instructive. There, the court held an entry beginning with" 'Per staff . . .'" was" 'obviously the observations . . . of the people in the psychiatric program'" and the reports of individuals" 'who are reporting [S.A.'s] observed conduct.'" (S.A., supra, 25 Cal.App.5th at p. 448.) As such, the court explained the entries were properly included under the business records exception. (Id. at p. 448.)
We conclude a similar analysis is appropriate here. For example, in exhibit 2, the records at issue are all part of a "Behavioral Health Discharge Summary" where daily treatment and progress logs were recorded along with a narrative summary of an interview conducted with I.G. upon his admission. While the staff's names are not recorded with each entry, the records indicate they are based upon observations of the medical staff around the time of the events described. Phrases such as "I met with him" and "We spoke" highlight that the entries were made by staff based upon their interactions with I.G. or their observations of him.
Likewise, I.G.'s challenge to certain entries in exhibit 3 fail. That exhibit also includes a summary of treatment notes and progress logs, which set forth interdisciplinary team meetings and progress notes made by various staff members. While I.G. questions "whether the author had observed" the information that is recorded in the entries, the entries sufficiently indicate they are based on staff interactions with I.G. For example, the January 18, 2022 entry states in part, "Writer saw resident . . . and offered resident his meds ...." As the trial court explained, "These are reports of staff reporting observed conduct." For this reason, the challenged entries contained in exhibit 3 fall within the business records exception to hearsay.
I.G. also asserts the trial court improperly admitted an entry that "indicates: '[I.G.] was disorganized, responding to internal stimuli, incoherent at PES'" because the entry relied on "staff at one facility purport[ing] to describe [I.G.'s] condition while at another facility." However, the court sustained I.G.'s objection to this entry and stated, "I will redact and not consider that statement ...." Because the court in fact sustained I.G.'s objection, there is no issue regarding this entry that must be resolved on appeal.
Next, I.G. argues various entries were improperly admitted because they contain clinical opinions. He contends certain medical symptoms and medical terms of art used in the entries were in fact clinical opinions. For example, I.G. objects to an August 8, 2021 entry, in which his behaviors were described as "predatory" and staff noted he "require[d] repeated redirection." I.G. contends the entry lacked information about "the nature" of the term "predatory" and "requiring redirection would be a clinical opinion rather than just a description of behavior." He raises similar objections to other entries in exhibits 2 and 3, which describe him "as having acute psychosis," "disorganization," and "refusing labs," and use the phrase "baseline behaviors." He contends these phrases all constitute clinical opinions.
Specifically, I.G. objected based on improper clinical opinion to the entry in exhibit 2 labeled, "Reason for Admission" from August 2021 and other entries dated August 8 and 18, 2021. From exhibit 3, I.G. objected to the entry dated January 1, 2022.
" '[O]bserved conduct'" is allowed under the business records exception to the hearsay rule. (S.A., supra, 25 Cal.App.5th at p. 448.) For example, in S.A., the court allowed entries that described the patient as "threatening." (Id. at p. 443.) Similarly in this case, the medical observations that I.G. contends are clinical diagnoses, such as "disorganization," "refusing labs," and "baseline behaviors" are in fact observable events noted by the staff.
We acknowledge the entry referencing I.G. as suffering from "acute psychosis" could be interpreted as a diagnosis. However, medical records may use the term "psychosis" or "psychotic" as an observational shorthand rather than a diagnosis. (See, e.g., People v. Blacksher (2011) 52 Cal.4th 769, 785-786 [clinician believed individual suffering from "psychotic reaction" but not diagnosed as schizophrenic] and In re M.L. (2012) 210 Cal.App.4th 1457, 1465 [individuals were described as" 'acutely psychotic'" but not necessarily diagnosed as such].) Here, the trial court adopted this approach, noting how "acute psychosis" could be taken as either an observation or a diagnosis. The court then clarified the phrase would be taken only as an observation. Dr. Weinstein likewise explained at trial how terms such as "psychosis" and "disorganization" were descriptions of "psychological presentation" for "symptoms of schizophrenia that are [on] the acute end of the spectrum." At no point did she testify that she considered these terms as diagnoses. Conversely, I.G. fails to cite any evidence demonstrating these entries were, in fact, diagnoses. The trial court correctly determined that these entries were not opinions but rather medical observations.
In sum, the challenged record entries were properly admitted to prove relevant acts, conditions, or events. The entries were admissible under the business records exception to the hearsay rule, and the trial court properly allowed Dr. Weinstein to consider them in forming her opinion that I.G. was gravely disabled.
B. Harmless Error
Even assuming the court erred in admitting into evidence the entries at issue, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. "The standard for prejudice applicable to state law error in admitting hearsay evidence is whether it is reasonably probable the appellant would have obtained a more favorable result absent the error." (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286.) Here, the record contained abundant other evidence supporting the finding that I.G. was gravely disabled. In her interview with I.G., Dr. Weinstein noted multiple symptoms of schizophrenia including "appear[ing] internally preoccupied," having "flattened affect," displaying a "limited understanding of any previous mental health history," and that he believes he has no need for "medications or any psychiatric care."
Thus, even assuming any of the challenged portions of the medical records were improperly admitted, which they were not, the resulting error was harmless.
III. DISPOSITION
The conservatorship order is affirmed.
WE CONCUR: BANKE, J., SWOPE, J. [*]
[*] Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.