Hahnemann Univ. Hosp. v. Edgar , 74 F.3d 456 ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
1-16-1996
Hahnemann Univ. Hosp. v. Edgar
Precedential or Non-Precedential:
Docket 95-1667
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-1667
HAHNEMANN UNIVERSITY HOSPITAL,
Petitioner
v.
CHARLES C. EDGAR and LAURA D.G. EDGAR,
conservators of the person and estate of
SHANE EDGAR, and CHARLES C. EDGAR
and LAURA D.G. EDGAR, in their own rights,
Respondents
The Honorable Raymond J. Broderick,
United States District Judge,
Nominal Respondent
On Petition for a Writ of Mandamus to the United States
District Court for the Eastern District of Pennsylvania
(Related to D.C. Civil Action No. 94-3515)
Argued November 30, 1995
BEFORE: GREENBERG and COWEN, Circuit Judges, and
0
PARELL, District Judge
(Filed: January 16, l996)
Sharon M. Reiss (argued)
Kimberly A. Cummings
Sheila A. Haren
Post & Schell, P.C.
19th Floor
1800 J.F.K. Boulevard
0
Honorable Mary Little Parell, Judge of the United States
District Court for the District of New Jersey, sitting by
designation.
1
Philadelphia, PA 19103
Attorneys for Petitioner
Fred T. Magaziner (argued)
Jill L. Russin
Dechert, Price & Rhoads
1717 Arch Street
4000 Bell Atlantic Tower
Philadelphia, PA 19103
Attorneys for Respondents
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Respondents Charles C. Edgar and Laura D.G. Edgar sued
Hahnemann University Hospital as conservators of the person and
estate of their daughter, Shane Edgar, and in their own right,
alleging that the hospital acted with gross negligence and
willful misconduct when it failed to protect Shane Edgar from
being raped forcibly by two male patients.0 During discovery,
the Edgars requested the patient charts of the two male patients
who allegedly raped Shane Edgar. The hospital objected on the
grounds that the documents were confidential and that it could
not comply with the request without violating the Pennsylvania
Mental Health Procedures Act, Pa. Stat. Ann. tit. 50, § 7101, et
0
At oral argument we asked counsel for the Edgars about the
prudence of including Shane Edgar's name in unsealed court
documents, in light of the nature of the allegations in the
underlying case. The attorney responded that the Edgars had
chosen not to have their names redacted from court proceedings.
For this reason, we include names in this opinion.
2
seq. (Purdon's Supp. 1995) ("MHPA"). The district court entered
a series of orders requiring Hahnemann to provide the court with
copies of all documents in its possession concerning the two male
patients for an in camera review, with possible disclosure of the
information to the parties, their counsel, and their experts, for
use at trial. Hahnemann filed a petition for a writ of mandamus
in this court, seeking immediate review of the district court's
orders. We will grant Hahnemann's petition for mandamus.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 19, 1993, Shane Edgar was admitted to the
Psychiatric Medical Care Unit of Hahnemann University Hospital in
Philadelphia, Pennsylvania, for observation and evaluation. That
same day, an involuntarily committed male psychiatric patient
sexually harassed Shane; Hahnemann allegedly became aware of the
incident. That night, the same male patient, along with another
involuntarily committed male psychiatric patient, raped Shane in
the bathroom of her room.0
Charles and Laura Edgar filed an action on behalf of
their daughter and themselves against Hahnemann, alleging that
the hospital negligently failed to protect their daughter from
the sexual assault. Because notice of the danger may be germane
to their cause of action under Pennsylvania law, the Edgars
sought discovery from Hahnemann of any information that would
0
We recite the facts as the Edgars allege them. It should be
understood, therefore, that our recitation does not constitute
findings.
3
demonstrate that it was on notice of the two male patients'
propensity for sexual assault. Specifically, they sought the
patient charts of the two men. The hospital objected on the
grounds that the documents were confidential and that it could
not comply with the request without violating the MHPA. After
the Edgars moved for sanctions, the district court held a
conference in an attempt to resolve the dispute. On April 19,
1995, the district court denied the Edgars' motion and directed
that if the dispute was not resolved they could file a more
specific set of requests for documents, limited by the MHPA.
After a final pretrial conference held on May 4, 1995,
the Edgars filed a motion to compel the production of various
documents, including the patient charts of the two male patients
and/or entries on their charts made by a mental health worker,
and the incident reports regarding the rape. Again, Hahnemann
objected on the grounds that the confidentiality of the documents
required protection under the MHPA. At the same time, the
hospital pointed out that redacting the patients' names from the
charts would not protect the documents' confidentiality because
the Edgars had information that would allow them to deduce which
report belonged to which patient.
On May 11, 1995, the district court, pursuant to
section 111 of the MHPA, Pa. Stat. Ann. tit. 50, § 7111, denied
the Edgars' request for the records. The court also denied the
motion to compel the notes and chart entries of the mental health
technician on duty the night of the attack. The court did,
4
however, order Hahnemann to produce any "incident reports"
created as a result of the attack, and further ordered that:
In the event that the only incident reports
prepared by [the mental health technician]
are contained in one or both of the treatment
records of the male patients involved in the
subject incident, the defendant shall . . .
submit the treatment records of these two
patients to the Court, in camera, for a
determination as to whether § 7111 of the
MHPA prohibits the discovery of said reports.
App. at 133. Hahnemann later informed the court by letter that
it had disclosed all "incident reports" to the Edgars, and that
an in camera inspection would not be necessary because the mental
health technician involved had not prepared such a report.
The Edgars filed a motion for reconsideration of the
May 11 order, emphasizing again that they were seeking
information as to whether the hospital should be held liable for
the rape and that they would be willing to accept documents
edited so as to obscure the identity of the patients. In
response, Hahnemann argued that the MHPA was so broad that even
disclosure of the records to the district court for an in camera
inspection was prohibited. Further, it reiterated its argument
that "[the Edgars] are in possession of information regarding
these two patients which would unfailingly allow them to identify
which records pertain to which man, regardless of redaction."
App. at 167. On July 10, 1995, the district court entered an
order stating that its May 11, 1995 order denying the Edgars
access to the patient charts remained in full force and effect
and requiring the parties to appear for a conference in chambers
on July 17, 1995, to discuss the following:
5
[W]hether, in the interest of justice,
methods might be employed to maintain the
confidentiality of documents covered by §7111
of the MHPA in the event the Court should
order documents concerning the treatment of
the two male patients who allegedly attacked
plaintiff Shane Edgar turned over to the
Court for a determination as to whether said
documents contain any matter which should
have put the defendant on notice.
Edgar v. Hahnemann Univ. Hosp., No. 94-3515 (E.D. Pa. July 10,
1995). On the same day, the district court entered an order
clarifying the meaning of "incident reports" and reiterating its
requirement for the production of such reports, including the in
camera inspection of the patients' records if such reports were
included therein.
At the July 17, 1995 conference, the court decided that
the hospital should deliver to it copies of all documents
regarding the two male patients so that it could determine
whether they contained information bearing on the liability of
the hospital. The court thereafter directed the parties to
submit proposed orders providing for the court to view the
documents in camera. In response to the court's request,
Hahnemann supplied it with a proposed order requiring disclosure
of the medical records in camera but also containing
certification language pursuant to 28 U.S.C. § 1292(b) and Fed.
R. App. P. 5, designed to allow immediate appeal from an
interlocutory order. The court then entered an order on July 18,
1995, which did not adopt the section 1292(b) certification
language but read as follows:
Within five days . . . Hahnemann University
Hospital shall deliver to the court copies of
all documents (including medical and
6
psychiatric records as well as documents
relating to involuntary commitment) in its
possession concerning each of the two male
patients who allegedly attacked Shane Edgar
on March 19, 1993. The Court shall make
every effort to maintain the confidentiality
of the documents as prescribed by 50 P.S.
§7111, 42 P.S. § 5944, 42 P.S. § 5929 and 28
Pa. Admin. Code § 103.22(b)(4) and shall
review the documents in camera for the sole
purpose of determining whether the documents
contain information relevant to the issue of
the standard of care the hospital owed Shane
Edgar to insure her safety and well being
while she was a patient. In the event the
court determines that these documents do
contain information relevant to the issue of
the standard of care the hospital owed Shane
Edgar to insure her safety and well being
while she was a patient, the Court will
direct counsel to make an effort to agree on
a procedure to be employed during the trial
of this case which will maintain the
confidentiality of documents and will permit
the use of the information. . . .
Edgar v. Hahnemann Univ. Hosp., No. 94-3515, slip op. at 2 (E.D.
Pa. July 18, 1995). When Hahnemann failed to comply with this
order, the Edgars moved the court to hold it in contempt.
On August 8, 1995, Hahnemann filed a petition for a
writ of mandamus in this court under the All Writs Act, 28 U.S.C.
§ 1651(a), seeking to compel the district court to withdraw its
July 10 and 18, 1995 orders. Two days later, Hahnemann asked the
district court to stay all proceedings before it pending our
disposition of the mandamus petition. While the request for a
stay was pending, the district court granted the Edgars'
application to hold Hahnemann in civil contempt for not providing
the district court with the contested medical records as ordered.
Thus, it entered an order on August 14, 1995, imposing a coercive
7
fine on Hahnemann of $1,000.00 per day for each day after August
16, 1995, that it did not comply with the July 18, 1995 order.
The district court then denied Hahnemann's request for a stay on
August 15, 1995, without prejudice to Hahnemann renewing the
request in the event that we grant the petition for mandamus. In
denying the request for a stay, the court observed that it had
not issued a formal ruling regarding certification under section
1292(b).0
On August 28, 1995, Hahnemann filed a "Supplemental
Petition . . . for Writ of Mandamus" in this court requesting
that we issue a stay of the coercive fine pending resolution of
its petition on the merits. On September 6, 1995, we entered an
order staying the coercive fine effective August 28, 1995, when
the supplemental petition was filed.
II. DISCUSSION
The district court has jurisdiction over the Edgars'
diversity of citizenship action pursuant to 28 U.S.C. § 1332. Our
jurisdiction is invoked pursuant to the All Writs Act, which
provides that federal courts "may issue all writs necessary or
0
[A]lthough para. 9 of [Hahnemann's Petition
for Stay of the Proceedings] asserts `in
releasing its July 19, 1995 Order, this Court
declined petitioning defendant's request that
these issues be certified for immediate
appeal pursuant to the procedure set forth at
28 U.S.C. § 1292(b)', the Court has not
issued any ruling in this case concerning
certification pursuant to 28 U.S.C. §1292(b).
Edgar v. Hahnemann Univ. Hosp., No. 94-3515 (E.D. Pa. Aug. 15,
1995).
8
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law." 28 U.S.C.
§1651(a). As the district court has diversity jurisdiction, this
court potentially has jurisdiction over the case and therefore
has jurisdiction under the All Writs Act to consider Hahnemann's
petition. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 482 (3d
Cir. 1995) (citing Westinghouse v. Republic of the Philippines,
951 F.2d 1414, 1422 (3d Cir. 1991)).
Hahnemann's petition contends that the district court's
orders requiring it to submit for in camera review the patient
charts of the two male patients who allegedly raped Shane Edgar
would require it to violate the MHPA, as well as Pennsylvania's
statutory psychotherapist-patient privilege, 42 Pa. Cons. Stat.
Ann. § 5944 (Purdon's Supp. 1995), the Pennsylvania Patient's
Bill of Rights, 28 Pa. Code. Ch. 103 (1983), and the
constitutional rights of privacy of the male patients. Our
inquiry requires us to decide whether the writ of mandamus is the
appropriate means of relief for the hospital to pursue and, if it
is, to examine whether the proposed in camera review of documents
is permissible. The first issue, of course, implicates federal
procedural law, and the parties correctly agree that the second
issue should be decided under state law. See Fed. R. Evid. 501.
Because we hold that mandamus is appropriate in this case and
that the MHPA as a matter of law prevents the disclosure of the
documents relating to the male patients' psychiatric care, we
will grant the petition for mandamus, but will not reach
9
Hahnemann's remaining reasons for contending that we should issue
the writ.
A. The Procedural Question
The writ of mandamus is a drastic remedy that a court
should grant only in extraordinary circumstances in response to
an act "amounting to a judicial `usurpation of power.'" Will v.
United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273 (1967) (quoting
De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217,
65 S. Ct. 1130, 1132 (1945)); Kerr v. United States Dist. Court,
426 U.S. 394, 402, 96 S. Ct. 2119, 2123-24 (1976). Given its
drastic nature, a writ of mandamus should not be issued where
relief may be obtained through an ordinary appeal. Bankers Life
& Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S. Ct. 145, 148
(1953) (citing Ex parte Fahey, 332 U.S. 258, 259-60, 67 S. Ct.
1558, 1559 (1947)); In re Sch. Asbestos Litig., 977 F.2d 764, 772
(3d Cir. 1992); Oracare DPO, Inc. v. Merin, 972 F.2d 519, 522-23
(3d Cir. 1992). Thus, in addition to the jurisdictional
prerequisite inherent in the language of section 1651(a), two
additional prerequisites for issuance of a writ are: "(1) that
petitioner have no other `adequate means to attain the [desired]
relief,' and (2) that petitioner meet its burden of showing that
its right to the writ is `clear and indisputable.'" Haines v.
Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992) (quoting Kerr,
426 U.S. at 403, 96 S.Ct. at 2124, and citing DeMasi v. Weiss,
669 F.2d 114, 117 (3d Cir. 1982)); Communication Workers v.
American Tel. & Tel. Co., 932 F.2d 199, 208 (3d Cir. 1991). Even
10
when these prerequisites are met, issuance of the writ is largely
discretionary, bearing in mind "`the unfortunate consequence of
making the . . . judge a litigant,'" Kerr, 426 U.S. at 402, 96
S.Ct. at 2124, and the highly disfavored effect of piecemeal
appellate review. Haines, 975 F.2d at 89; DeMasi v. Weiss, 669
F.2d at 117.
Discovery orders are not "final" for purposes of 28
U.S.C. § 1291 and, therefore, ordinarily are not appealable until
after there is a final judgment. Haines, 975 F.2d at 83 (citing
Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir. 1969)).
Furthermore, we do not permit parties to litigation to circumvent
the final judgment rule simply by resisting discovery orders and
then appealing from an eventual finding of civil contempt. See,
generally, DeMasi, 669 F.2d at 122-23. To be sure, appeal after
final judgment constitutes "other means" of relief. Where a
privilege is asserted, however, such relief usually is not
"adequate." As we held in Bogosian v. Gulf Oil Corp., 738 F.2d
587 (3d Cir. 1984), "[w]hen a district court orders production of
information over a litigant's claim of a privilege not to
disclose, appeal after a final decision is an inadequate remedy .
. . for compliance with the production orders complained of
destroys the right sought to be protected." Id. at 591
(citations omitted). Several of our cases since Bogosian have
reaffirmed this basic proposition. See, generally, Glenmede
Trust Co., 56 F.3d at 483; Rhone-Poulenc Rorer Inc. v. Home
Indem. Co., 32 F.3d 851, 861 (3d Cir. 1984); Haines, 975 F.2d at
89.
11
Respondents and nominal respondent argue, however, that
issuing a writ of mandamus would be inappropriate at this point
because Hahnemann never formally petitioned the district court
for certification under 28 U.S.C. § 1292(b).0 Therefore,
respondents contend there remains a viable and "adequate"
alternative to the issuance of an extraordinary writ. We
disagree. Hahnemann included certification language in the
proposed order allowing in camera inspection that it submitted to
the district court. Nevertheless, the district court did not
include that language in the order it entered. While it is true
that, "[w]here interlocutory appeal seems a practical but untried
avenue, we will ordinarily deny a petition for mandamus," In re
Sch. Asbestos Litig., 977 F.2d at 774, we also have stated that
"neither Federal Rule of Appellate Procedure 21 nor any decision,
Rule, or Internal Operating Procedure of this court has codified"
a requirement to seek section 1292(b) certification before filing
a petition for mandamus. Id. at 773. Furthermore, although
Hahnemann did not formally move the district court for a section
1292(b) certification, it is clear that it did so at least
informally.
We recognize that, in a particular case, it might be
appropriate to exercise our discretion to deny mandamus because a
0
In their answer to the petition, the Edgars raised this
objection, but they did not repeat it in their subsequently filed
brief and, at oral argument, appeared to abandon the objection.
We nevertheless address the point because (1) it is appropriate
to do so in light of the standards governing applications for
mandamus and (2) the nominal respondent has filed an answer
raising the point.
12
formal application for certification has not been made under
section 1292(b). Yet where, as here, at least an informal
application has been made and not granted, we believe it can be
appropriate to grant mandamus, especially since we never have
established an "inflexible pleading requirement" regarding
section 1292(b) certification. Id. at 774; see Alexander v.
Primerica Holdings, Inc., 10 F.3d 155, 163 n.8 (3d Cir. 1993).0
Hahnemann's desired relief of maintaining the confidentiality and
privilege of the medical records of the two male patients could
be lost forever unless we issue a writ of mandamus. See Haines,
975 F.2d at 89 (writ of mandamus is only means of relief from
order requiring production of documents allegedly subject to
attorney-client privilege). We therefore hold that because
Hahnemann has no other adequate means to attain its desired
relief, the first requirement for mandamus has been satisfied.
In addressing the merits of this case in an effort to
determine if Hahnemann's right to a writ of mandamus is "clear
and indisputable," Haines, 975 F.2d at 89, we first must specify
exactly which order(s) of the district court are subject to
0
We also point out that section 1292(b) permits a district court
to certify an order so that a court of appeals may grant leave to
appeal only if the district court concludes that the "order
involves a controlling question of law . . . and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation . . . ." It is
conceivable that mandamus might be appropriate in a case not
satisfying the section 1292(b) certification standard. See
Westinghouse v. Republic of the Philippines, 951 F.2d at 1422
n.6; Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 n.14
(3d Cir. 1986). Thus, we have not imposed an inflexible
requirement that certification be sought and, if granted, leave
to appeal be sought before a writ of mandamus may issue.
13
mandamus. We have decided that only the July 10 and 18, 1995
orders requiring Hahnemann to produce the treatment records of
the two male patients are subject to mandamus. Although
Hahnemann has indicated in its petitions and briefs that it also
challenges the August 14 and 15, 1995 orders respectively holding
it in contempt and denying its motion for a stay, we find that
those orders are not appropriate for review by mandamus. To the
extent that Hahnemann seeks relief from the August 15 order
denying Hahnemann's motion for a stay, the district court's order
is not reviewable by mandamus because the court indicated that it
would permit a renewed motion to stay (or vacate) in the event
that this court grants Hahnemann's writ on the merits. As to the
August 14 contempt order, Hahnemann has a possible alternative
remedy that renders our issuance of a writ inappropriate:
Hahnemann can appeal the contempt order after final judgment if
it has paid the fines incurred between August 16 and August 28,
1995 (the latter being the date of our stay). Thus, we review on
the merits only the district court's orders of July 10 and July
18 requiring the production for in camera review of the patients'
treatment charts.
B. The Scope of the MHPA Privilege
As we stated above, Hahnemann claims that the MHPA
forbids it from producing the records of the patients who
allegedly raped Shane Edgar to the district court. The Act
"establishes rights and procedures for all involuntary treatment
of mentally ill persons, whether inpatient or outpatient, and for
14
all voluntary inpatient treatment of mentally ill persons." Pa.
Stat. Ann. tit. 50, § 7103. Section 111 of the MHPA provides as
follows:
All documents concerning persons in
treatment shall be kept confidential and,
without the person's written consent, may not
be released or their contents disclosed to
anyone except:
(1) those engaged in providing treatment
for the person;
(2) the county administrator, pursuant
to section 110;
(3) a court in the course of legal
proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes
and regulations governing disclosure of
patient information where treatment is
undertaken in a Federal agency.
In no event, however, shall privileged
communications, whether written or oral, be
disclosed to anyone without such written
consent. This shall not restrict the
collection and analysis of clinical or
statistical data by the department, the
county administrator or the facility so long
as the use and dissemination of such data
does not identify individual patients. . . .
Pa. Stat. Ann. tit. 50, § 7111. The purpose of the MHPA is to
further the policy of the Commonwealth of Pennsylvania "to seek
to assure the availability of adequate treatment to persons who
are mentally ill." Id. § 7102. In fact, the Pennsylvania
Supreme Court has given the patient's right to confidentiality of
psychiatric records constitutional status. See In re June 1979
Allegheny County Investigating Grand Jury, 415 A.2d 73, 77-78
(Pa. 1980) (but finding that public policy reasons may allow
constitutionally protected records to be subpoenaed where
appropriate protections against further disclosure are in place);
15
In re B., 394 A.2d 419, 425 (Pa. 1978). The Act therefore is
strictly construed. In re Roy, 620 A.2d 1172, 1173 (Pa. Super.
Ct. 1993), appeal denied, 639 A.2d 30 (Pa. 1994); Commonwealth v.
Moyer, 595 A.2d 1177, 1179 (Pa. Super. Ct. 1991), appeal denied,
604 A.2d 248 (Pa. 1992).
Section 111 of the MHPA does not create a conventional
privilege protecting communications only if they satisfy certain
elements. See In re June 1979 Allegheny County Investigating
Grand Jury, 415 A.2d at 76-77. On the contrary, section 111 is
much broader in scope, covering any document that "concern[s]
persons in treatment." Pa. Stat. Ann. tit. 50, § 7111. The
statute requires that such documents "shall be kept confidential
and, without the person's written consent, may not be released or
their contents disclosed to anyone except" in four listed
situations, all having to do with psychiatric care. Id. That
language indicates that disclosure of treatment records is
forbidden unless one of the statutory exceptions applies.
Indeed, it appears that every Pennsylvania court in
determining the applicability of section 7111 first has examined
whether the situation before it constituted one of the listed
exceptions. See, e.g., Johnsonbaugh v. Dep't of Public Welfare,
665 A.2d 20, 26 (Pa. Commw. Ct. 1995) ("Petitioner has failed to
establish that any of the statutory exceptions apply[.]"). The
only exception that could be applied in the case before us is the
one contained in subparagraph (3), allowing disclosure of
confidential documents to "a court in the course of legal
proceedings authorized by this act." Pa. Stat. Ann. tit. 50,
16
§7111. However, this exception has been held to include only
involuntary and voluntary mental health commitment proceedings,
as those are the only legal proceedings authorized by the Act. In
re Roy, 620 A.2d at 1173-74 ("[A] patient's inpatient mental
health records may be used by a court only when the legal
proceedings being conducted are within the framework of the MHPA,
that is, involuntary and voluntary mental health commitment
proceedings.") (quoting Commonwealth v. Moyer, 595 A.2d at 1179).
When none of the four exceptions to section 7111 of the
MHPA applies, the Pennsylvania state courts consistently have
denied requests for production of documents that the statutory
privilege covers. For example, in Commonwealth v. Moyer, 595
A.2d 1177, a case stemming from repeated sexual assaults of a
boy, the Superior Court of Pennsylvania overturned the
defendant's conviction on the ground that the trial court erred
in admitting his mental health treatment records into evidence
because they were privileged under the MHPA. In Leonard v.
Latrobe Area Hosp., 549 A.2d 997 (Pa. Super. Ct. 1988),
plaintiffs' mother was killed by her husband, and they brought a
negligence action against the hospital that treated him for a
psychiatric disorder. The Superior Court reaffirmed that under
the MHPA the hospital could not disclose the patient's records.
In Ferrara v. Horsham Clinic, 1994 WL 249741 (E.D. Pa.
June 3, 1994), plaintiff brought a wrongful death and survival
action against a clinic in which her daughter had committed
suicide. The district court denied plaintiff's motion to compel
production of the treatment notes concerning a patient who had an
17
altercation with her daughter. Id. at *2. The court held that
these documents were privileged under the MHPA and could not be
disclosed. Id. In Kakas v. Commonwealth, 442 A.2d 1243 (Pa.
Commw. Ct. 1982), a hospital employee fired for allegedly
punching a patient subpoenaed the patient's records for his
hearing before the State Civil Service Commission to challenge
the dismissal. The Commonwealth Court affirmed the Commission's
quashing of the subpoena duces tecum on the ground that the
records were privileged under the MHPA.
In fact, with the exception of cases in which the
statutory privilege has been waived by the patient, e.g., Sprague
v. Walter, 656 A.2d 890, 910-11 (Pa. Super. Ct. 1995), it seems
that a Pennsylvania court has found in only one case that the
protection conferred by section 7111 of the MHPA should give way.
In Fewell v. Besner, 664 A.2d 577 (Pa. Super. Ct. 1995), the
plaintiff was committed involuntarily pursuant to the MHPA after
becoming severely depressed over her four-month-old son's death.
While committed she confessed to the defendant, her therapist,
that she had suffocated her son. Id. at 578. Believing
(erroneously) that state law obligated him to report child abuse,
the therapist informed the coroner of plaintiff's confession and
testified at her criminal trial, where she was found guilty.0
0
On appeal from her conviction, the Superior Court found that the
therapist's compelled testimony at trial violated the state's
psychotherapist-patient privilege, 42 Pa. Cons. Stat. Ann. §5944,
but determined that the error was harmless. Commonwealth v.
Fewell, 654 A.2d 1109, 1115 (Pa. Super. Ct. 1995). The court was
not presented with the issue involved in the civil suit (that the
immunity provisions trumped the statutory confidentiality
requirements).
18
Commonwealth v. Fewell, 654 A.2d 1109, 1115 (Pa. Super. Ct.
1995). Plaintiff then sued the therapist for violating section
111 of the MHPA but the trial court granted the therapist's
motion to dismiss based on provisions in the mandatory reporting
law granting immunity from suit for those who acted in good faith
in making a report. On appeal, plaintiff claimed that the
immunity provision was in conflict with the confidentiality
requirements of section 111 of the MHPA. The Superior Court
disagreed. It held that the privilege must yield to the immunity
provisions, noting the strong policy interest evinced by the
statutes requiring the reporting of child abuse. Thus, the court
essentially held that a therapist who learns of child abuse
during therapy and is compelled to testify at a criminal trial
will not be permitted to invoke the MHPA confidentiality
privilege, given the competing statutory interests in the
reporting of child abuse, and the statutory immunity from suit
granted to those making such reports.
The cases we have cited make it clear that the MHPA is
strictly construed by the Pennsylvania courts. In the absence of
a waiver of the privilege, in only one instance has a court held
that a confidential document should be produced, and that case
involved the competing statutory interests of child abuse
reporting and good faith immunity from suit. No such competing
statutory interests apply here, and in any event it is not the
place of this court to create judicial exceptions to a
Pennsylvania statute that has been strictly construed by the
state's courts. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96,
19
101 (3d Cir. 1994) (federal court in diversity case ought not to
stretch state common law).
In spite of the state courts' strict interpretation of
the MHPA, however, the Edgars argue that Pennsylvania could not
possibly have intended to require confidentiality under the
circumstances presented in this case. Additionally, they
complain that the policy the statute seeks to promote --
encouraging treatment by ensuring confidentiality -- is not
advanced by strict adherence to the statutory language of the
privilege in this case. Again, while the Edgars may raise
plausible policy arguments against the legislative wording of the
statute, we are obliged to follow the statute as written and
interpreted by the Pennsylvania courts. The MHPA presents an
absolute confidentiality privilege against the disclosure of
documents that "concern[] persons in treatment." The
Pennsylvania courts have interpreted the wording of the statute
strictly. While in a particular case, a litigant may challenge
documents for which protection is claimed as not meeting the
"concerning persons in treatment" standard, that situation is
clearly not present here, since the documents we are considering
are the treatment records of the two men accused of raping Shane
Edgar.0
0
We doubt that a hospital can make an unreviewable ex parte
determination that a document concerns a person in treatment and
thereby refuse to disclose documents for an in camera review,
intended in the first instance to determine if the document is
confidential according to section 111. If a hospital could
sustain that position, it would be able to withhold documents
that might not reasonably be covered by the section. We,
however, are not concerned with a situation of that nature here.
20
Further, unlike conventional privileges that apply only
to certain communications, section 111 of the MHPA creates a much
broader protection, forbidding the disclosure of any document
"concerning persons in treatment" regardless of the contents of
that document. Thus, it is possible that documents receiving
protection under the MHPA may not contain material that would be
privileged under any other statutory or common-law privilege.
Nevertheless, as long as the documents concern persons in
inpatient psychiatric treatment (voluntary or involuntary),
section 111 of the MHPA absolutely forbids their disclosure
except in the enumerated circumstances.0 The in camera
inspection of such documents by the district court in this case
does not fall within one of those exceptions. We have no further
inquiry to make.
III. CONCLUSION
We therefore hold that Hahnemann's right to a writ of
mandamus is clear and indisputable, and that the district court
exceeded its authority in compelling the hospital to produce the
charts of the two male patients. Consequently, we will grant the
writ of mandamus and direct the district court to vacate the July
10 and 18, 1995 orders compelling production of the patients'
records for in camera inspection and possible disclosure.
0
As we have indicated, the MHPA applies to "all involuntary
treatment of mentally ill persons, whether inpatient or
outpatient, and [to] all voluntary inpatient treatment of
mentally ill persons." Pa. Stat. Ann. tit. 50, § 7103. We are
not concerned here with tortious conduct of outpatients.
21
However, we will deny Hahnemann's supplemental petition for a
writ of mandamus on the issues of the petition for a stay of the
district court proceedings and the district court's contempt
order. The parties shall bear their own costs on these mandamus
proceedings.
22