Abdelrahman v. Hon. martin/mesa ( 2017 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    SOHA ABDELRAHMAN, Petitioner,
    v.
    THE HONORABLE DANIEL MARTIN, a Judge of the SUPERIOR
    COURT OF THE STATE OF ARIZONA, in and for the County of
    MARICOPA, Respondent Judge
    v.
    MESA UNIFIED SCHOOL DISTRICT #4, Real Party in Interest
    No. 1 CA-SA 17-0065
    FILED 4-13-2017
    Petition for Special Action from the Superior Court in Maricopa County
    No. CV2016-003770
    The Honorable Daniel Martin, Judge
    JURISDICTION ACCEPTED, RELIEF GRANTED
    COUNSEL
    Mick Levin, PLC, Phoenix
    By Sandra Lemon
    Counsel for Petitioner
    Appel Law Office PLLC, Fountain Hills
    By Marc A. Appel
    Counsel for Real Party In Interest
    ABDELRAHMAN v. HON. MARTIN/MESA
    Decision of the Court
    MEMORANDUM DECISION
    Chief Judge Michael J. Brown delivered the decision of the Court, in which
    Presiding Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
    B R O W N, Chief Judge:
    ¶1             Soha Abelrahman (“Mother”) seeks special action relief from
    the superior court’s order requiring disclosure of her twelve-year-old son’s
    (“Son”) privileged medical records. The court ordered the disclosure on
    the basis that Mother “has placed her son’s medical condition in issue in
    connection with her claims against Defendant,” meaning Son’s physician-
    patient privilege had been impliedly waived. Because we conclude that the
    court erred in finding waiver, we accept jurisdiction and grant relief.
    BACKGROUND1
    ¶2             Mother and Son filed a notice of claim against Mesa Unified
    School District #4 (the “District”) arising from an accident in which a
    District bus rear-ended a car occupied by Mother and Son, causing injuries
    to each of them. The notice, filed by counsel, indicated that Mother and Son
    would accept settlements of $20,000.00 and $10,000.00, respectively. When
    no pre-litigation resolution was reached, Mother sued the District for
    negligence. Son was not named as a plaintiff and Mother did not seek
    damages arising out of Son’s injuries. Given the amount in controversy,
    the case was referred to compulsory arbitration by the superior court.
    ¶3             As the litigation progressed, Mother testified at a deposition
    that due to the injuries she sustained in the accident, she was unable to take
    care of Son, or perform tasks such as “regular activity like I was doing
    before, like cooking, cleaning in my house, driving the kids to school.” She
    further asserted she was unsure if she would be seeking additional
    1      Our analysis here is based only on the documents provided to us in
    this special action, which include the following documents filed in the
    superior court: notice of claim, complaint, Mother’s interlocutory appeal of
    the arbitrator’s discovery ruling, the District’s response, Mother’s reply,
    and the superior court’s order denying the interlocutory appeal. No
    depositions or medical records have been provided; however, several
    quotations from the depositions are included in the parties’ memoranda.
    2
    ABDELRAHMAN v. HON. MARTIN/MESA
    Decision of the Court
    treatment for her injuries because “I’m real busy with my son. He was sick
    for a [long] time and all of our care and attention was to him.”
    ¶4            The District then sought disclosure of Son’s medical records,
    asserting that Mother placed them at issue and she had thus waived the
    physician-patient privilege. The arbitrator ruled that the medical records
    were discoverable, and the District subsequently requested the following
    documents from Mother:
    all medical records in connection with the fall 3-4 months ago
    and hurt left leg referred to in the attached Palmer
    Chiropractic Consultation history for [Son] and all
    subsequent medical records including, but not limited to, the
    subsequent surgery referred to during [Mother’s] deposition
    that occurred in December of 2015 and any follow up
    treatment in connection with that surgery.
    ¶5            Mother appealed the arbitrator’s ruling, arguing the privilege
    had not been waived, and even if it had, the “waiver must be narrowly
    tailored to the particular medical condition at issue.” The District
    responded that “plaintiff has waived her son’s doctor-patient privilege in
    connection with the treatment her son received in connection with the
    subject motor vehicle accident” by giving deposition testimony “regarding
    how her son’s injuries and treatment contributed [sic] her injuries and
    limited the treatment she received for her injuries.”
    ¶6              The superior court denied Mother’s interlocutory appeal,
    finding that Mother had placed Son’s “medical condition in issue in
    connection with her claims against [the District], and accordingly has
    waived the physician-patient privilege.” Mother then petitioned for special
    action relief from this court.
    JURISDICTION
    ¶7             Special action review “is the proper means to seek relief
    when a party believes a trial court has ordered disclosure of material
    protected by a privilege.” Green v. Nygaard, 
    213 Ariz. 460
    , 462, ¶ 6 (App.
    2006) (internal quotation marks omitted). “Special action jurisdiction is also
    appropriate . . . when the respondent judge’s alleged abuse of discretion
    concerns a pure issue of law that may be decided without further factual
    inquiry.” 
    Id.
     (internal quotations and citations omitted). Given these
    considerations, we accept jurisdiction.
    3
    ABDELRAHMAN v. HON. MARTIN/MESA
    Decision of the Court
    DISCUSSION
    ¶8            The only issue we address here is whether Mother impliedly
    waived Son’s physician-patient privilege by placing his medical condition
    at issue as part of her claims against the District.
    ¶9            We review the superior court’s ruling in a discovery dispute
    for an abuse of discretion, recognizing that the court may abuse its
    discretion if it commits an error of law in the process of reaching a
    discretionary conclusion. Green, 213 Ariz. at 462, ¶ 7. “The existence and
    scope of an evidentiary privilege is a question of law we review de novo.”
    Rasor v. Northwest Hosp., LLC, 
    239 Ariz. 546
    , 555, ¶ 27 (App. 2016).
    ¶10            The physician-patient privilege precludes a physician from
    being examined about any communications made by the patient concerning
    the patient’s condition or any knowledge of the condition obtained through
    personal examination of the patient without the consent of the patient, or
    the patient’s conservator or guardian. See Ariz. Rev. Stat. (“A.R.S.”) § 12-
    2235. The privilege holder may voluntarily consent to “be examined” as to
    any privileged communication, thereby effectuating an express waiver of
    the protection of the privilege. See A.R.S. § 12-2236; Bain v. Superior Court
    (Mills), 
    148 Ariz. 331
    , 333 (1986) (noting that “statutes relating to the
    psychologist-patient privilege and the attorney-client privilege are unique
    by containing express provisions specifying the conduct which will be
    deemed a waiver of the privilege”). The District has made no assertion that
    Mother expressly waived Son’s physician-patient privilege.
    ¶11             Arizona also recognizes, however, the concept of implied
    waiver of privilege. See Bain, 
    148 Ariz. at 334
     (“[W]here a privilege holder
    . . . places a particular medical condition at issue by means of a claim or
    affirmative defense, . . . then the privilege will be deemed waived with
    respect to that particular medical condition.”); see also 8 WIGMORE ON
    EVIDENCE 855, § 2388 (McNaughton Rev. 1961) (“A waiver is to be
    predicated . . . when the conduct (though not evincing that intention) places
    the claimant in such a position, with reference to the evidence, that it would
    be unfair and inconsistent to permit the retention of the privilege. It is not
    to be both a sword and a shield.”). The scope of implied waiver of the
    physician-patient privilege extends only to privileged communications
    concerning the specific condition that has been voluntarily placed at issue
    by the privilege holder. See Bain, 
    148 Ariz. at 334
    .
    ¶12          The patient is the holder of the privilege and, as such, is the
    only person who can waive it; however, when the patient is a minor child,
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    ABDELRAHMAN v. HON. MARTIN/MESA
    Decision of the Court
    in some circumstances the child’s parents, as “legal guardians,” may be
    found to have waived the child’s privilege. See Duquette v. Superior Court
    (Lamberty), 
    161 Ariz. 269
    , 272 n. 5 (App. 1989) (finding that parents who
    filed a medical malpractice case waived their minor son’s physician-patient
    privilege, as his “legal guardians,” by including him as a plaintiff in the
    lawsuit and thereby placing his medical condition at issue). We assume,
    without deciding, that the parents of a child, without being formally
    appointed as the “guardian[s] of the patient,” may expressly or impliedly
    waive the privilege on behalf of the child, but presumably may only do so
    if such consent is in the interests of the child (as opposed to the interests of
    the parents).
    ¶13           Mother argues the court-ordered disclosure is improper
    because she did not place Son’s medical condition at issue in a way that
    results in a waiver. She contends that a “nonparty cannot be forced to
    waive their privilege for another party’s lawsuit.”
    ¶14            The District relies on Duquette, in which this court concluded
    that a minor patient’s parents impliedly waived the physician-patient
    privilege by placing their minor son’s medical condition at issue through
    initiation of a medical malpractice suit. 
    161 Ariz. at 272
    . In that case,
    however, the minor child was a party to the litigation. 
    Id. at 270
    . In finding
    implied waiver, we reasoned that the parents (1) placed their son’s medical
    condition at issue by filing suit, (2) claimed their son’s medical expenses as
    damages in their claims, and (3) failed to object to the testimony of their
    son’s treating physicians when that testimony was offered at a medical
    liability review panel hearing. 
    Id. at 272
    . Based on those factors, none of
    which are present here, Duquette found an implied waiver of the physician-
    patient privilege held by the minor son. 
    Id.
    ¶15            In this case, Mother is the only named plaintiff. Son is not a
    party to this litigation, and Mother has not sought to recover Son’s medical
    expenses as part of her claim for damages. Mother timely objected, and
    continues to object, to disclosure of Son’s medical information. And no
    evidence provided has effectuated an implied waiver.
    ¶16           The District argues nonetheless that Mother waived the
    privilege when she “plac[ed] her son’s medical condition in issue in
    connection with [her] claims against [the District] by . . . claiming that her
    injuries were aggravated by and that she did not get treatment because of
    an injury to her son that her son and his medical records state were caused
    by the subject motor vehicle accident.” But privileged records from a third
    party (including a minor child) are not discoverable under those
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    ABDELRAHMAN v. HON. MARTIN/MESA
    Decision of the Court
    circumstances. The District has not cited, nor has our research revealed,
    any authority suggesting that a parent may unilaterally waive a non-party
    child’s privilege as part of the parent’s personal injury claims that do not
    allege personal injury to the child or seek recovery for the child’s injuries.
    Thus, we hold that Mother has not waived Son’s physician-patient
    privilege.
    CONCLUSION
    ¶17            Because we conclude that the superior court erred in finding
    that Mother impliedly waived Son’s physician-patient privilege regarding
    his medical records, we vacate the court’s order compelling disclosure of
    Son’s medical records and remand for further proceedings consistent with
    this decision. In our discretion, we deny both parties’ request for attorneys’
    fees.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6
    

Document Info

Docket Number: 1 CA-SA 17-0065

Filed Date: 4/13/2017

Precedential Status: Non-Precedential

Modified Date: 4/18/2021