C.B. v. Sabalos
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
C.B., PATIENT “1,” PATIENT “2,” PATIENT “3,” PATIENT “4,” non-party patients,
Petitioners,
v.
Hon. Charles SABALOS, Judge of the Superior Court of the State of Arizona, in
and for the County of Pima, Respondent,
and
Jane Roe, an individual woman; Sandra Mattson, Ph.D., a single woman; Donald
Garland, M.D., and Dawn Garland, husband and wife; Wesley McEldon, a single
man; Edward Gentile and Deborah Gentile, husband and wife; Hospital Corporation
of America dba Sonora Desert Hospital; and Charter Hospital Of Tucson, Inc., an
Arizona corporation, Real Parties in Interest.
Donald Garland, M.D., and Dawn Garland, husband and wife, Petitioners,
v.
Hon. Charles Sabalos, Judge of the Superior Court of the State of Arizona, in
and for the County of Pima, Respondent,
Jane Roe, an individual woman; Sandra Mattson, Ph.D., a single woman; Wesley
McEldon, a single man; Edward Gentile and Deborah Gentile, ) husband and wife;
Hospital Corporation of America dba Sonora Desert Hospital; and Charter
Hospital of Tucson, Inc., an Arizona corporation, Real Parties in Interest.
Sandra Mattson, Ph.D., a single woman, Petitioner,
v.
Hon. Charles Sabalos, Judge of the Superior Court of the State of Arizona, in
and for the County of Pima, Respondent,
and
Jane Roe, an individual woman; Donald Garland, M.D., and Dawn Garland, husband
and wife; Wesley McEldon, a single man; Edward Gentile and Deborah Gentile,
husband and wife; Hospital Corporation of America dba Sonora Desert Hospital;
and Charter Hospital Of Tucson, Inc., an Arizona corporation, Real Parties in
Interest.
Nos. 2CA-SA00-0048, 2CA-SA00-0049, 2CA-SA00-0053.
Court of Appeals of Arizona,
Division 2, Department B.
June 15, 2000.
SPECIAL ACTION PROCEEDING Pima County Cause No. 325240 RELIEF GRANTED
Arizona Center for Disability Law By Leslie J. Cohen and Dena Rosen Epstein Phoenix Attorneys for Petitioners Non-Party Patients
Chandler, Tullar, Udall & Redhair Tucson By Peter Akmajian and Dev K. Sethi Attorneys for Petitioners Garland
Renaud, Cook & Drury, P.A. By William W. Drury, Jr. Phoenix and Attorneys for Petitioner Mattson
Carol M. Romano Tucson Attorneys for Real Party in Interest Jane Roe
Lynne M. Cadigan and Kim E. Williamson Law Offices of Arnold and Phoenix Polk, P.C. Attorneys AzCLU, By Charles Arnold, Jay Polk, and for Amici Curiae Mental Health Association of Arizona, and the Arizona Alliance for the Mentally Ill John H. Barron III
E S P I N O S A, Chief Judge.
?1 Petitioners in these three consolidated special
actions challenge the respondent judge’s order compelling disclosure of
redacted mental health records of certain non-party patients in the
underlying medical malpractice action. The plaintiff in that action claims
she was negligently diagnosed as suffering from multiple personality
disorder and falsely led to believe that she had been a victim of satanic or
ritual abuse. The defendants include psychiatrist Donald Garland and
psychologist Sandra Mattson, who, along with the non-party patients, are the
petitioners in these special actions. Because an appeal could not rectify
any damage that may result from the compelled disclosure of the patients’
records, Ulibarri v. Superior Court, 184 Ariz. 382, 909 P.2d 449
(App. 1995); Ziegler v. Superior Court, 134 Ariz. 390, 656 P.2d
1251 (App. 1982), and because we find the respondent judge abused his
discretion in compelling the production of the mental health records, we
accept jurisdiction and grant relief. See Ariz. R. Special Actions
1 and 3, 17B A.R.S.
Background
?2 In March 1998, real party in interest Jane Roe filed
a complaint against Garland, Mattson, Sonora Desert Hospital, Tucson
Psychiatric Institute, and others, alleging she had been misdiagnosed and
negligently treated. The treatment included hypnosis designed to facilitate
her recovery of blocked memories and several periods of hospitalization. Roe
contends that while hospitalized, she participated in group therapy sessions
with other women who, like her, had been diagnosed as suffering from and
were being treated for dissociative disorders. Roe served discovery requests
on the defendants, seeking disclosure of “all patients treated by you for
multiple personality disorder or dissociative disorder, stating (without
revealing or identifying the names)” certain details about their treatment.
After Garland and Mattson objected on grounds of relevance and privilege,
Roe filed a motion to compel the defendants to produce the mental health
records of the defendants’ non-party patients who had been diagnosed and/or
treated by the defendants for multiple personality disorder and/or satanic
or ritual abuse. Roe’s motion recognized that “precautions [should be]
instituted to ensure that any records obtained this way are appropriately
redacted to protect the non-party patients’ identity.” Mattson and Garland
sought protective orders to prevent such disclosure. The respondent judge
granted the motion to compel and ordered Garland to produce the
following:
no more than 30 files of patients with satanic abuse or [who] have
suffered from Multiple Personality Disorder symptoms with appropriate
redaction to conceal the identity of the patients within 10 days of this
date. The plaintiff shall select no more than 5 former patients for
potential deposition for Rule 404(b)[, Ariz. R. Evid., 17A A.R.S.,]
witnesses. Within 10 days after any deposition of any Rule 404(b) witness,
the plaintiff shall select 3 potential witnesses by filing other act
evidence under Rule 404(b).
The defendants filed a motion for reconsideration, which the respondent
denied. However, the respondent modified his previous order by entering a
new one, which provided as follows:
IT IS THE ORDER OF THE COURT that Dr. Garland shall provide to the
plaintiff no more than 30 patient files diagnosed with satanic abuse and/or
suffering from Multiple Personality Disorder with appropriate redaction
within 10 days, and Dr. Mattson shall provide within 10 days no more than 10
files of patients diagnosed or treated for satanic abuse and/or suffering
Multiple Personality Disorder with appropriate redaction to conceal the
identity of the patients.
The second order also alluded to future depositions and trial testimony
of the disclosed non-party patients. It is from this order that petitioners
seek special action relief.
Discussion
?3 The parties do not dispute that a patient’s medical
records are confidential and are protected from discovery by statute.
See A.R.S. ?? 12-2235, 12-2282(A), 32-3283, and 32-2085. Nor do
they dispute that courts have only pierced the statutory veil of privacy in
those isolated instances in which the trial court has concluded that the
medical records of non-parties were relevant to the litigation and, with
proper redaction, the identity of the non-parties would not be disclosed.
See Ziegler (permitting discovery of portions of medical charts of
twenty-four non-party patients of defendant cardiologists in an action
against them and hospital for unnecessary implantation of heart pacemaker);
cf. Gasiorowski v. Hose, 182 Ariz. 376, 897 P.2d 678 (App. 1994)
(finding admissible in malpractice action against anesthesiologist evidence
of other episodes in which he had difficulty with same procedure on other
patients). However, there are no Arizona cases resolving the question of
whether mental health treatment records should be held strictly confidential
or subject to discovery in accordance with the precautions specified in
Ziegler.
?4 In Ziegler, this court concluded that
non-party patients’ medical records may be subject to limited discovery in
spite of the statutory privilege if certain precautions are taken: (1) all
references to the name, address, marital status, occupation, or employment
of the patient are removed; (2) after review, the records are filed with the
court and not opened absent court order; (3) no efforts are made to discover
the identity of the patients or to contact them; and (4) information learned
from the records is not communicated to a non-party, except to experts and
during trial. We note that although Jane Roe told the trial court she would
be willing to follow the Ziegler requirements for discovery, the
respondent court declined her request for that protection and, instead,
ordered only “appropriate redaction.”
?5 Other jurisdictions have likewise concluded that
medical records of a defendant’s non-party patients may be discovered where
identifying information is deleted. Cochran v. St. Paul Fire &
Marine Ins. Co., 909 F.Supp. 641 (W. D. Ark. 1995) (hospital’s
medication incident report discoverable where non-party patients’
identification deleted); Community Hosp. Ass’n v. District Court,
570 P.2d 243 (Colo. 1977) (copies of medical records of 140 surgical
patients of defendants surgeon and hospital ordered produced where records
redacted to eliminate names, addresses, marital status, and occupation or
employment of patients and to be filed with the court and sealed);
Amente v. Newman, 653 So. 2d 1030 (Fla. 1995) (medical records of
physician’s obese obstetrics patients during two-year period allowed to be
discovered where privacy and confidentiality rights protected by redacting
all identification information); Terre Haute Reg’l Hosp., Inc. v.
Trueblood, 600 N.E.2d 1358 (Ind. 1992) (discovery permitted of redacted
medical records of non-party surgical patients where claim was based on
alleged unnecessary surgeries); State ex rel. Lester E. Cox Med. Ctr. v.
Keet, 678 S.W.2d 813 (Mo. 1984) (redacted medical records of injured
patients treated at defendant medical center discoverable by malpractice
plaintiff whose husband died after being similarly treated); Tanzi v.
St. Joseph Hosp., 651 A.2d 1244 (R.I. 1994) (patients’ emergency room
treatment records held discoverable provided personal identification
information redacted). See also Audrey W. Collins, Discovery,
in Medical Malpractice Action, of Names and Medical Records of Other
Patients to Whom Defendant has Given Treatment Similar to that Allegedly
Injuring Plaintiff, 66 A.L.R.5th 591 (1999) (citing these and other
cases similarly holding).
?6 We do not disagree with those cases which, like
Ziegler, hold that, under certain circumstances, medical records
that may be privileged by statute may be discoverable nonetheless. In those
cases, however, the records related to medical diagnoses and treatment of a
physical nature. In such cases, the redaction of the non-parties’
identification information from the medical records rendered the information
fungible and virtually impossible to connect to any particular patient.
Heart patients who have had pacemakers implanted, Ziegler, or
patients who have had epidural catheters inserted, Gasiorowski, are
intrinsically and fundamentally distinguishable from mental health patients.
The records the respondent judge ordered disclosed detail the diagnoses of
and treatment for mental illnesses, records which necessarily describe in
detail the patients’ thoughts, actions, fears, and mental health history.
Mental health patients, perhaps more than any other medical patient, must be
assured that their communications with those providing their treatment will
be held in the strictest confidence. That assurance is essential for a
patient’s treatment. And, because of the unfortunate societal stigma
attached to mental illness, the need for confidentiality is even more
crucial. The often already fragile mental health patient should not be
burdened with the additional concern that his or her confidential
communications may be disclosed, potentially compromising treatment. In
those cases in which disclosure of redacted medical records of non-party
patients has been permitted, concern for confidentiality and treatment were
not as interwoven as they are here, nor does it appear that the risk of
societal stigmatization, where any, was as pronounced. Cf. Ex parte
Mack, 41 So. 2d 799 (Ala. 1984) (disclosure of other patients who had
abortions same day as plaintiff and of those present during her counseling
sessions could be embarrassing or harmful to them and would violate their
rights to privacy and confidentiality).
?7 This case does not present us with the question of
whether mental health records of non-parties must be produced where the
trial court is assured that the records could be redacted to avoid any
possibility that the patients could later be identified. It is clear in this
case that such redaction was not contemplated by the respondent judge.
Indeed, the judge anticipated that some of the non-parties would be deposed
and would testify at trial. One non-party patient petitioner, “C.B.,” has
already been deposed in this case over objection, and any redaction of her
records would not prevent identification of her because her deposition
testimony could readily be matched to the produced records. Similarly,
removing the patients’ names from the records offers no protection where Roe
alleges that she participated in group psychotherapy sessions with others
with similar diagnoses. Likely she, her counsel, or her expert would be able
to identify other patients based on the specific, personalized details of
the mental health patient’s confidences revealed during therapeutic
sessions(1)
and contained in the redacted medical records. But, those patients had every
right to rely on statutory guarantees of confidentiality and privacy.
See Oslund v. United States, 128 F.R.D. 110, 115 (D. Minn. 1989)
(participants in a group therapy session “had an expectation that their
participation in and disclosures to the group would remain confidential”);
Parkson v. Central DuPage Hosp., 435 N.E.2d 140, 144 (Ill. App.
1982) (non-party patients disclosed information “with an expectation of
confidentiality” and whether redaction of their names and identifying
numbers from records would protect their identity was “questionable at
best”).
Conclusion
?8 Because of the likelihood that production of the
medical records described in the
respondent trial judge’s order may lead to identification of the
non-party patients, and because the nature of mental health records demands
de minimus, if any, encroachment on the statutory protection of the
patients’ privacy, we find that the respondent’s order compelling production
of the records was an abuse of his discretion. Therefore, the judge’s order
of April 4, 2000, is vacated except for the portions denying Roe’s Motion to
Amend the Complaint and granting the Arizona Center for Disability Law leave
to appear in the case.
?9 Relief granted.
___________________________________
PHILIP G. ESPINOSA, Chief Judge
CONCURRING:
________________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge
________________________________________
JOSEPH W. HOWARD, Judge
1. Any redaction to avoid such possibility of
identification here presumably would result in emasculated, and perhaps
incomprehensible, records which would be of no value to Roe in her
litigation.