Mitchell v. Eighth Jud. Dist. Ct. , 2015 NV 21 ( 2015 )

131 Nev., Advance Opinion 2.1
IN THE SUPREME COURT OF THE STATE OF NEVADA
RYAN MITCHELL, D.O., No. 63076
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF APR 30 2015
CLARK; AND THE HONORABLE
KENNETH C. CORY, DISTRICT
JUDGE,
Respondents,
and
ALEC BUNTING, BY AND THROUGH
HIS GUARDIAN AD LITEM, STELLA
RAVELLA; AND STELLA RAVELLA,
INDIVIDUALLY,
Real Parties in Interest.
Original petition for a writ of mandamus d recting the district
court to sustain the privileges asserted by a defendant loctor in a medical
malpractice case as to his personal counseling and treatment records.
Petition granted in part and denied in part.
Mandelbaum, Ellerton & McBride and Sarah Marie Ellerton, Kim Irene
Mandelbaum, and Robert C. McBride, Las Vegas,
for Petitioner.
The Law Office of Daniel S. Simon and Daniel S. Simon Las Vegas,
for Real Parties in Interest.
BEFORE THE COURT EN BANC.
- 7/Z05: (lorre_69-eti ?e,4/ Leitrz -tv pu-i,1147//5, CY
- 31 (X)
OPINION
By the Court, PICKERING, J.:
This is a medical malpractice case in which the doctor
defendant, petitioner Ryan Mitchell, seeks an extraordinary writ directing
the district court to protect as privileged counseling and medical records
relating to his substance abuse. We conditionally grant the writ.
Mitchell's family and marital therapy records are privileged, and his
doctor-patient records, though subject to the patient-litigant exception in
NRS 49.245(3), should have been reviewed in camera by the district court
and appropriate limitations placed on their use before discovery of all or
any part of them was allowed.
I.
Alec Bunting experienced heart problems following a
tonsillectomy performed by Dr. Mitchell. Bunting's guardian ad litem,
Stella Ravella, sued Mitchell and Mitchell's employer for medical
malpractice and negligent hiring and supervision, respectively. Ravella's
complaint alleges that Mitchell's misadministration of anesthesia during
the surgery caused then-seven-year-old Bunting's heart to fail. Bunting
survived, but his heart now beats with the help of a pacemaker.
In deposition, Mitchell admitted that at the time he operated
on Bunting he was addicted to Ketamine and Valium, which he had
abused intermittently for years. Mitchell denies operating on Bunting—or
any patient—while under the influence of drugs or alcohol. But, three
months after Bunting's tonsillectomy, Mitchell was arrested for domestic
violence while high on drugs, and three months after that, Mitchell was
arrested for driving under the influence. Mitchell was convicted of both
offenses. He disclosed in deposition that, after his arrests, he and his wife
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pursued marriage counseling and that he was treated for substance abuse
by two different doctors, first on an outpatient, then on an inpatient basis.
Ravella posits that Mitchell was impaired when he operated
on Bunting and that Mitchell's employer should have recognized his
addictive behavior and prevented him from treating patients. Seeking
support for her position, Ravella subpoenaed Mitchell's counseling and
substance abuse treatment records. Mitchell objected, citing the doctor-
patient and family therapist-client privileges. The district court overruled
Mitchell's privilege claims. It held that Ravella's claims and Mitchell's
and his employer's defenses to them placed Mitchell's drug addiction in
issue in the litigation, thereby terminating the privileges that originally
attached to his communications with his doctors and with his and his
wife's family therapist. 1
The law reserves extraordinary writ relief for situations
"where there is not a plain, speedy and adequate remedy in the ordinary
course of law." NRS 34.170 (mandamus); NRS 34.330 (prohibition).
Because most discovery rulings can be adequately reviewed on appeal
from the eventual final judgment, extraordinary writs "[g] enerally . are
not available to review discovery orders." Clark Cnty. Liquor & Gaming
1 Thisis Mitchell's second writ petition. Argument on the first
petition was canceled after Mitchell's bankruptcy triggered the automatic
stay in 11 U.S.C. § 362. After a series of reports on the bankruptcy case,
we dismissed the first petition without prejudice to avoid having it linger
indefinitely on the docket. When Ravella obtained relief from the
bankruptcy stay, she returned to district court, which again denied
Mitchell's privilege claims, prompting this second writ proceeding. A
three-judge panel heard argument on the petition, then transferred it to
the en bane court pursuant to IOP 13(b).
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Licensing Bd. v. Clark, 102 Nev. 654, 659, 730 P.2d 443, 447 (1986). But
when a discovery order directs disclosure of privileged information, a later
appeal may not be an effective remedy. Wardleigh v. Second Judicial Dist.
Court, 111 Nev. 345, 350-51, 891 P.2d 1180, 1183-84 (1995) ("If improper
discovery were allowed, the assertedly privileged information would
irretrievably lose its confidential and privileged quality and petitioners
would have no effective remedy, even by a later appeal."); see Hetter v.
Eighth Judicial Dist. Court, 110 Nev. 513, 515, 874 P.2d 762, 763 (1994).
Thus, we have occasionally granted extraordinary writ relief from orders
allowing pretrial discovery of privileged information, especially when the
petition presents an unsettled and important issue of statutory privilege
law. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 93, 993 P.2d 50, 54
(2000); Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244,
247 (1993).
Our cases do not address whether and, if so, how the at-issue
waiver doctrine and/or the patient-litigant exception to the doctor-patient
and family therapist-client privileges apply when it is the defendant who
claims the privilege and the plaintiff who has put the defendant's physical
or mental condition in issue. And, without writ relief, compelled
disclosure of Mitchell's assertedly privileged communications will occur
before a final appealable judgment is reached. 2 Together, these
2Although one of Mitchell's doctors produced his records before
Mitchell could object, Mitchell asks that, if we sustain his privilege claims,
we direct the district court to enter an order in limine prohibiting
reference to the produced records at trial and requiring that all copies of
the records be returned to Mitchell or destroyed. The other two providers
have yet to produce their records, as the district court's production order
has been stayed.
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considerations persuade us that our intervention by way of extraordinary
writ is appropriate in this matter.
NRS 49.225 and NRS 49.247 protect as privileged confidential
communications between a patient and his doctor and between clients and
their marriage and family therapist. These privileges initially attached to
Mitchell's doctor-patient and marriage and family therapist-client
communications. The question we face is whether these confidential
communications lost their privileged status when Mitchell's drug addiction
became relevant to Ravella's malpractice and negligent hiring and
supervision claims. This is a legal question that we decide de novo,
without deference to the district court. See Las Vegas Sands Corp. v.
Eighth Judicial Dist. Court, 130 Nev. Adv. Op. No. 69, 331 P.3d 905, 909-
10 (2014). Since the analysis differs for the two privileges, we discuss
them separately, taking the doctor-patient privilege first.
A.
A patient who voluntarily puts his physical or mental
condition in issue in a lawsuit loses the protection of the doctor-patient
privilege for communications with his doctor about that condition. 1
Kenneth S. Broun et. al, McCormick on Evidence § 103, at 631 (7th ed.
2013). Variously referred to as waiver by placing in issue or the in-issue
or at-issue waiver doctrine, this judicially developed rule promotes
fairness, see 8 John Henry Wigmore, Evidence § 2388, at 855 (McNaugton
rev. 1961), and discourages abuse of the privilege; it "prevents the patient
from putting his physical or mental condition in issue and then asserting
the privilege to prevent an adversary from obtaining evidence that might
rebut the patient's claim." 25 Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure: Evidence § 5543, at 320
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5
(1989). Today, many states, including Nevada, have amended their
doctor-patient privilege statutes to create an express patient-litigant
exception that, depending on the form of the exception statute, directs the
same or a similar result as the at-issue waiver doctrine. See NRS
49.245(3); Edward J. Imwinkelried, The New Wigmore: Evidentiary
Privileges § 6.13.3 (2d ed. 2014).
1.
Citing out-of-state case law, e.g., Chung v. Legacy Corp., 548
N.W.2d 147 (Iowa 1996); Shamburger v. Behrens, 380 N.W.2d 659 (S.D.
1986), Mitchell insists that neither the at-issue waiver doctrine nor the
patient-litigant exception properly applies unless the patient is the one
who puts his physical or mental condition in issue. And, indeed, this is
the law stated in Chung, Shamburger, and other like cases. See also NRS
49.385 (providing that a privilege is waived if the holder "voluntarily
discloses or consents to disclosure of any significant part of the [privileged]
matter"). If the holder of the privilege denies a litigation adversary's
allegations about his physical or mental condition, he has not voluntarily
put his condition in issue. Since waiver requires an affirmative, voluntary
act by the holder of the claim or right to be waived, see Mill Spex, Inc. v.
-
Pyramid Precast Corp., 101 Nev. 820, 822, 710 P.2d 1387, 1388 (1985)
("[W]aiver is the intentional relinquishment of a known right"), such
forced denials normally do not waive the privilege. See Broun, supra, §
103, at 633 ("With respect to defenses, a distinction is clearly to be seen
between the allegation of a physical or mental condition, which will effect
the waiver [of the doctor-patient privilege], and the mere denial of such a
condition asserted by the adversary, which will not."); see also Leavitt v.
Siems, 130 Nev. Adv. Op. No. 54, 330 P.3d 1, 7 (2014) ("Bringing a claim
for personal injury or medical malpractice results in a limited waiver of
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the physician-patient privilege with regard to directly relevant and
essential information necessary to resolve the case.").
Mitchell did not place his drug addiction in issue in the
underlying malpractice suit; Ravella did. Analyzed purely as a matter of
waiver, Mitchell's doctor-patient privilege thus remains intact and is not
affected by Ravella's malpractice and negligent supervision claims. But
our analysis does not end with the at-issue waiver doctrine. We still must
consider Nevada's statutory patient-litigant exception. 3
2.
NRS 49.245(3) states the patient-litigant exception to
Nevada's doctor-patient privilege as follows:
There is no privilege under NRS 49.225 . . . [a's to
[communications] [41 relevant to an issue of the
3 Mitchell cites NRS 458.280 in support of his petition for writ relief,
which provides that records created at an alcoholism and substance abuse
treatment center are confidential and "must not be disclosed without
consent of the patient." Mitchell did not make this argument in the
district court and it is therefore waived. Old Aztec Mine, Inc. v. Brown, 97
Nev. 49, 52, 623 P.2d 981, 983 (1981).
4The current version of NRS 49.245(3) uses the phrase "written
medical or hospital records," rather than the word "communications" that
appeared in the original version of the statute. Compare 1971 Nev. Stat.,
ch. 402, § 53, at 785, with 1987 Nev. Stat., ch. 449, § 1, at 1036. This
change was made in 1987 to prevent a defense lawyer from interviewing a
personal injury plaintiffs doctor privately, without the plaintiffs counsel
present. See Leavitt, 130 Nev. Adv. Op. No. 54, 330 P.3d at 7. The 1987
amendment does not affect the issues addressed in this opinion but does
complicate their discussion. To facilitate comparison of Nevada's version
of the patient-litigant exception with the model from which it was drawn
and those enacted in other states, this opinion substitutes the original
"communications" for "written medical or hospital records."
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condition of the patient in any proceeding in which
the condition is an element of a claim or defense.
A plain reading of the statute's text does not support a requirement that
the patient must place his condition in issue for the exception to terminate
the privilege. Rather, the statute seems to say that, all other conditions
being met—i.e., there is: a confidential communication; that is relevant; to
an issue of the patient's condition; in a proceeding; in which the condition
is an element of a claim or defense—the exception applies, regardless of
who raised the claim or defense that triggered it.
Essentially, Mitchell treats NRS 49.245(3) as a codification of
the at-issue waiver doctrine. He asks us to import into the statute a
requirement that the patient must assert the condition-based claim or
defense for the exception to apply. But we cannot enlarge the doctor-
patient privilege by judicially narrowing one of its principal exceptions
without running afoul of NRS 49.015, which constrains nonconstitutional
privileges to those the Legislature has authorized. Cf. Rogers v. State, 127
Nev. Adv. Op. No. 25, 255 P.3d 1264, 1266 (2011) (Nevada's doctor-patient
privilege depends on statute, not common law). And the sparse legislative
history that exists does not support Mitchell's position. If anything, the
historical context suggests its studied rejection.
Nevada adopted its current evidence code in 1971. See 1971
Nev. Stat., ch. 402. The Nevada Commission that was tasked with
proposing a modern draft evidence code drew on the Preliminary Draft of
Proposed Rules of Evidence for the United States District Courts and
Magistrates submitted by the Advisory Committee on Federal Rules of
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Evidence (Draft Federal Rules), reprinted in 46 F.R.D. 161 (1969). 5 See
Legislative Commission of the Nevada Legislative Counsel Bureau, A
Proposed Evidence Code, Bulletin No. 90, at 1 (Nev. 1970) [hereinafter
Bulletin No. 90]. It also consulted the Model Rules of Evidence proposed
by the National Conference of Commissioners on Uniform State Law and
the ABA in 1953 (the Uniform Act), the California Evidence Code, and
existing Nevada law. Bulletin No. 90 at 1. The Draft Federal Rules
proposed to eliminate the general doctor-patient privilege altogether, for
policy reasons. 46 F.R.D. at 259-60. In its place, Draft Federal Rule 5-04
offered a much narrower psychotherapist-patient privilege. See id. at 257-
59. The Nevada Commission did not agree with eliminating the doctor-
patient privilege, so it "adapted" the psychotherapist-patient privilege in
Draft Federal Rule 5-04 by "enlarg[ing it] to embrace all doctors of
medicine, dentistry and osteopathy as well as licensed psychologists."
Bulletin No. 90, § 53, at 24 cmt.
Draft Federal Rule 5-04(d)(3) included a patient-litigant
exception, as follows:
There is no privilege under this rule as to
communications relevant to an issue of the mental
or emotional condition of the patient in any
proceeding in which he relies upon the condition
as an element of his claim or defense, or, after the
patient's death, in any proceeding in which any
party relies upon the condition as an element of
his claim or defense.
5 Itwas not until July 1, 1975, four years after Nevada adopted its
evidence code, that the Federal Rules of Evidence went into effect. Act of
Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926.
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46 F.R.D. at 259. Unlike NRS 49.245(3), Draft Federal Rule 5-04(d)(3)
limited the patient-litigant exception to conditions on which the patient
relied as an element of his claim or defense (except for a deceased patient's
condition, on which any party's reliance terminates the privilege). To
convert Draft Federal Rule 5-04(d)(3) to NRS 49.245(3) (1971) required the
following changes to the former:
There is no privilege under this rule [NRS 49.225]
as to communications relevant to an issue of the
ment-al—er—emetienal condition of the patient in
after the patient's death, in any proceeding in
which •: : - the condition as [is]
an element of his [a] claim or defense.
This comparison dispels any notion that the Nevada Legislature, through
its Legislative Commission, meant but somehow forgot to limit the
exception in NRS 49.245(3) to claims the patient initiated. On the
contrary, it suggests that contemporary drafters knew how to limit the
exception to patient-raised claims or defenses, 6 but that Nevada's evidence
code authors, for whatever reason, chose a different path.
6 The Uniform Act and California Evidence Code, which the Nevada
Legislative Commission also consulted, see Bulletin No. 90 at 1, likewise
limited their patient-litigant exceptions to claims or defenses the patient
initiated. Uniform Act Rule 223(3) ("There is no privilege under Rule 221
in an action in which the condition of the patient is an element or factor of
the claim or defense of the patient or of any party claiming through or
under the patient." (emphasis added)); Cal. Evid. Code § 996(a) (West
2009) ("There is no [medical] privilege. . . as to a communication relevant
to an issue concerning the condition of the patient if such issue has been
tendered by . . . [t]he patient.").
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Comparable differences in statutory text also distinguish
Shamb urger and Chung, referenced above as among Mitchell's primary
authorities. Like Draft Federal Rule 5-04(d)(3) but unlike NRS 49.245(3),
the patient-litigant exception considered in Shamburger, S.D. Codified
Laws § 19-13-11 (1986), read: "There is no privilege under § 19-13-7 as to a
communication relevant to an issue of the physical, mental or emotional
condition of the patient in any proceeding in which he relies upon the
condition as an element of his claim or defense or, after the patient's
death, in any proceeding in which any party relies upon the condition as
an element of his claim or defense." 380 N.W.2d at 662 n.4. And the
exception in Chung, Iowa Code § 622.10 (1993), only applied in "a civil
action in which the condition of the person in whose favor the [privilege
runs] is an element or factor of the claim or defense of the person or of any
party claiming through or under the person," 548 N.W.2d at 149.
Shamburger and Chung thus do not offer much interpretive guidance,
since the statutes they addressed expressly adopted the limitation Mitchell
asks us to imply into NRS 49.245(3).
We have not found another patient-litigant exception exactly
like Nevada's, but Texas's and Utah's are close. Tex. R. Evid. 509(e)(4)
(2003) (the doctor-patient privilege does not apply if "any party relies upon
the [patient's physical, mental, or emotional] condition as a part of the
party's claim or defense [and the communication or record is relevant to
that condition]"); Utah R. Evid. 506(d)(1) (2013) (no privilege exists "[for
communications relevant to an issue of the physical, mental, or emotional
condition of the patient: [(A)] in any proceeding in which that condition is
an element of any claim or defense, or [(B)] after the patient's death, in
any proceedings in which any party relies upon the condition as an
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element of the claim or defense"). By dispensing with the requirement
that the patient initiate the claim or defense, these statutes expand the
patient-litigant exception and abrogate the patient's control over the
privilege.
Even so, the exceptions are not unlimited. To terminate the
privilege, the condition must be more than merely relevant to a litigated
claim or defense; it must be a part (Texas) or an element (Nevada and
Utah) of the claim or defense. Reading the exceptions as written, without
requiring that the patient initiate the claim or defense to trigger them,
thus does not reduce the privileges to the point of absurdity, 7 as Mitchell
suggests. See R.K. v. Ramirez, 887 S.W.2d 836, 841-42 (Tex. 1994)
(disapproving of cases holding that the patient must raise the claim to
which the condition relates or the privilege would cease to exist; by its
terms, the patient-litigant exception requires more than mere relevance of
the condition to a claim or defense to trigger the exception); State v.
Worthen, 222 P.3d 1144, 1151-52, 1158 (Utah 2009) (recognizing that "[i]f
feelings themselves were to constitute a mental or emotional condition [for
purposes of the rule], the exception to the psychotherapist-patient
privilege would devour the privilege" but nonetheless concluding, on the
record presented, that the victim's pathological hatred of her parents
formed an element of the defendant's fabrication defense, subjecting the
7 The anti-absurdity doctrine is usually invoked when a statute, as
written, does not parse; it aides interpretation but "does not license courts
to improve statutes (or rules) substantively, so that their outcomes accord
more closely with judicial beliefs about how matters ought to be resolved."
Jaskolski v. Daniels, 427 F.3d 456, 461 (7th Cir. 2005).
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victim's therapy records to in camera review and carefully circumscribed
disclosure).
Mitchell protests that it is unfair and bad policy to allow
Ravella to gain access to his doctor-patient records based on claims she
alone raised. But from Ravella's perspective, it is equally unfair to allow
Mitchell to suppress evidence by claiming a privilege to which the patient-
litigant exception, as written in Nevada, applies. As a policy matter, the
debate is not as one-sided as Mitchell assumes.
While it is true that the defendant did not have
"the litigating initiative", it may be the case that
his or her out-of-court behavior is what triggered
the lawsuit.. . . Is not a person who says "I was
not drunk at the time I operated on the plaintiff"
and then claims the privilege to prevent inquiry
into his alcoholism as much abusing the privilege
as the plaintiff who seeks to close his physician's
mouth while asserting serious injury? . . . It is only
when one assumes that the person seeking to
destroy the status quo is in the poorer moral
status than the person allegedly responsible for
the status quo that the policy argument for
defensive use of the privilege takes on much
power. At least the contrary arguments are strong
enough to suggest why some people have favored a
"qualified" exception that would permit the court
to see what justice requires before applying the
exception.
Wright & Graham, supra, § 5543, at 328 n.65.
The policy lines here were drawn by the Legislature, which
omitted any requirement that the patient make an issue of his condition
for the patient-litigant exception to apply. We decline to read into NRS
49.245(3) a limitation it does not state.
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3.
Regardless of who raised the issue of the patient's condition,
for the patient-litigant exception to apply, the party seeking to overcome
the privilege still must show that the "condition of the patient" is "an
element of a claim or defense" in the proceeding. NRS 49.245(3) (emphasis
added). The term "element" is not defined in NRS Chapter 49. Generally,
an "element" of a claim is a "part of a claim that must be proved for the
claim to succeed." Black's Law Dictionary 559 (8th ed. 2004) (emphasis
added); see Wright & Graham, supra, § 5543, at 330 ("Though 'element' is
not defined, the term is usually used to refer to those fundamental
assertions of fact that were required to be pleaded under the old system of
code pleading." (footnote omitted) (discussing the successor to Draft
Federal Rule 5-04(d)(3))).
Relevance alone does not make a patient's condition an
element of a claim or defense. At minimum, the patient's condition must
be a fact "to which the substantive law assigns significance." Ramirez, 887
S.W.2d at 842 (applying the more expansive "part" of a claim or defense
requirement of Tex. R. Evid. 509(d)). A defendant who pleads not guilty
by reason of insanity, for example, has asserted a defense that has, as one
of its elements, his insanity. See Wright & Graham, supra, § 5543, at 330-
31. Similarly, a disinherited child who challenges her father's will on the
grounds he was incompetent has asserted a claim about her father's
condition to which legal consequences attach: If proved, the condition
alleged invalidates the will. Ramirez, 887 S.W.2d at 842-43. In both
instances, the patient's condition is an element of the claim or defense—
not merely relevant—because the claim or defense fails unless the
condition asserted is established in fact.
14
Mitchell's drug addiction is not an element of Ravella's
malpractice claim against him. To establish medical malpractice a
plaintiff must show that: "(1) . . . the doctor's conduct departed from the
accepted standard of medical care or practice; (2) . . . the doctor's conduct
was both the actual and proximate cause of the plaintiffs injury; and
(3) . . . the plaintiff suffered damages" as a result. Prabhu v. Levine, 112
Nev. 1538, 1543, 930 P.2d 103, 107 (1996). Ravella counts Mitchell's drug
addiction as an element of her malpractice claim because his "mental,
emotional and physical condition contributed to his negligence and falling
below the standard of care." This argument misses the mark. Of legal
consequence to a medical malpractice claim is whether the practitioner's
conduct fell below the standard of care, not why. See Ramirez, 887 S.W.2d
at 845 (Enoch, J., dissenting). Put another way, Ravella wins if she shows
that Mitchell's misadministration of the anesthetic fell below the standard
of care and caused Bunting's injuries; legally, Mitchell's diminished
capacity doesn't matter. While Mitchell's drug addiction may be relevant
to, it is not an element of, Ravella's medical malpractice claim. 8
We reach the opposite conclusion with respect to Ravella's
negligent hiring and supervision claims. Unlike her malpractice claim
against Mitchell, Ravella's negligent hiring and supervision claims against
his employer require her to establish that the clinic knew or should have
known that Mitchell was unfit for the position he held. See Hall v. SSF,
Inc., 112 Nev. 1384, 1392-93, 930 P.2d 94, 99 (1996). For purposes of NRS
8 Ravellaalso argues that Mitchell's drug addiction is an element of
Mitchell's defense that he exercised due care. But just as Ravella need not
prove Mitchell's addiction to show his breach, Mitchell need not disprove it
to show that he met the requisite standard of care.
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49.245(3), this makes Mitchell's condition an element of Ravella's negligent
hiring and supervision claims. See Hosey v. Presbyterian Church (U.S.A.),
160 F.R.D. 161, 163-64 (D. Kan. 1995) (holding that a deceased priest's
pedophilia, for which he received psychiatric treatment, was an element of
a plaintiffs negligent hiring and supervision claim against the church that
employed him; thus, the patient-litigant exception terminated the doctor-
patient privilege (similar to Draft Federal Rule 5-04(d)(3), Kansas law
dispensed with the requirement that the patient initiate the claim for the
exception to apply if the patient was deceased)); see also Ramirez, 887
S.W.2d at 843-44 (holding that the Texas patient-litigant exception
terminated the doctor-patient privilege as to communications relevant to a
doctor's unfitness in a case alleging that the defendant hospital and clinic
"knew or should have known of the [doctor's] condition and because of that
condition should have supervised him better or not selected him at all").
4.
Although not limited to patient-initiated claims or defenses,
the Nevada patient-litigant exception demands close scrutiny when the
claim or defense triggering it is asserted by or on behalf of someone other
than the patient. A patient presumably will not base a claim or defense on
his physical or mental condition unless that condition in fact exists. A
stranger to the doctor-patient relationship, by contrast, may be tempted to
speculate as to the physical or mental condition of his or her adversary,
especially if that will open the door to embarrassing or painful revelations.
To invoke the patient-litigant exception, therefore, the nonpatient must
establish a basis in fact for the district court to conclude that the condition
exists and is an element of a legitimate claim or defense. Cf. Worthen, 222
P.3d at 1149-50 (a nonpatient must demonstrate to a "reasonable
certainty" that the records sought contain evidence material to the claim
16
or defense asserted for the district court to proceed with an in camera
review of them).
Ravella's charge that Mitchell was in the throes of active
substance abuse at the time he operated on Bunting goes well beyond
speculation. Mitchell's arrests, convictions, and admissions in deposition
sufficiently establish his addiction and its temporal proximity to the
surgery to have justified the district court in undertaking an in camera
review of the medical records relating to Mitchell's treatment for
substance abuse to determine which should be made available to Ravella
and the conditions appropriate to their production. Ramirez, 887 S.W.2d
at 843 (after a prima facie showing is made that the nonpatient has fairly
invoked the exception, the district court should undertake an in camera
review of the medical records to "ensure that the production of documents
ordered, if any, is no broader than necessary, considering the competing
interests at stake"); see Worthen, 222 P.3d at 1156 (in camera review
appropriate to restrict production of unprivileged but nonetheless private
documents); see also NRCP 26(c) ("Upon motion by a party or by the
person from whom discovery is sought,. . . the court in which the action is
pending may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense.").
Mitchell and Ravella litigated the privilege issues in this case
on an all-or-nothing basis in the district court. Not surprisingly, therefore,
the district court did not conduct an in camera review of the medical
records relating to Mitchell's substance abuse treatment. We therefore
conditionally grant the writ and direct the district court to review the
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doctor-patient records in camera and enter such orders respecting their
production and use as are consistent with this opinion.
B.
No basis exists, however, to overcome the privilege that
attached to Mitchell's and his wife's confidential communications with
their marital and family therapist under NRS 49.247. Neither Mitchell
nor his wife put their counseling sessions in issue in the litigation by
Ravella against Mitchell and Mitchell's employer. The at-issue waiver
doctrine, therefore, does not apply, for the same reasons it does not apply
to Mitchell's medical records. And, while NRS 49.249(4) creates a client-
litigant exception to the marital and family therapist-client privilege
provided in NRS 49.247, that exception is much narrower than the
patient-litigant exception in NRS 49.245(3). It provides simply that
"[t] here is no privilege under NRS 49.247 . . . [a]s to communications
relevant to an issue of the treatment of the client in any proceeding in
which the treatment is an element of a claim or defense." (Emphasis
added.) No issue respecting the treatment provided by the Mitchells'
marital and family therapist is implicated, much less an element of a
claim or defense, in this case. For that reason, the exception does not
apply and the district court is ordered to grant a protective order
interdicting discovery of the Mitchells' marriage and family therapy
sessions.
We therefore issue a writ of mandamus directing the district
court to rescind its order rejecting the claims of privilege in this case, to
protect as privileged the confidential communications between the
Mitchells and their marital and family therapist, and to proceed
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18
as outlined in this opinion as to the doctor-patient communications and
records.
J.
Pickering
We concur:
, C.J.
J.
Parraguirre
J.
19
DOUGLAS, J., concurring in part and dissenting in part:
I join the majority opinion except as to the discussion in
section III(A)(3) respecting Mitchell's addiction as an element of Ravella's
malpractice claim against him pursuant to NRS 49.245(3). In my view,
the majority's reading and interpretation of NRS 49.245(3) and Prabhu v.
Levine, 112 Nev. 1538, 930 P.2d 103 (1996), is too strident of an
application.
In this case, Mitchell admitted that at the time he operated on
Bunting he was addicted to Ketamine and Valium, which he had abused
intermittently for years. However, Mitchell denies operating on
Bunting—or any patient—while under the influence of drugs or alcohol.
But, three months after Bunting's tonsillectomy, Mitchell was arrested for
domestic violence while high on drugs, and three months after that,
Mitchell was arrested for driving under the influence. Mitchell was
convicted of both offenses. He disclosed in the deposition that, after his
arrests, he and his wife were treated for substance abuse. Additionally,
RaveHa's charge that Mitchell was in the throes of active substance abuse
at the time he operated on Bunting goes well beyond speculation.
Mitchell's arrests, convictions, and admissions in deposition sufficiently
establish his addiction and its temporal proximity to the surgery to have
justified the district court in undertaking an in camera review of the
medical records relating to Mitchell's treatment for substance abuse to
determine which should be made available to Ravella and the conditions
appropriate to their production. R.K v. Ramirez, 887 S.W.2d 836, 843
(Tex. 1994) '(after a prima facie showing is made that the nonpatient has
fairly invoked the exception, the district court should undertake an in
camera review of the medical records to "ensure that the production of
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documents ordered, if any, is no broader than necessary, considering the
competing interests at stake").
I submit that Mitchell's admitted addiction is relevant and
should be considered as an element of Ravella's malpractice claim as to
whether it contributed to his negligence and whether his conduct fell
below the standard of care. This made Mitchell's addiction an element of
Ravella's direct malpractice claim against him and independently justified
the discovery she sought, with or without the added negligent supervision
or hiring claim against Mitchell's employer. Almost the identical issue
confronted the Texas Supreme Court in Ramirez, where, construing
Texas's comparable patient-litigant exception statute, the majority held
that the direct malpractice claim against the addicted doctor triggered
application of the patient-litigant exception. Ramirez, 887 S.W.2d at 838,
844. I recognize that Texas uses "part" instead of "element" of the claim or
defense in its statute, but to me that is a distinction without a difference.
Concern for the addicted doctor's privilege and privacy interests is
accommodated by requiring in camera review of the documents pre-
production, and the fashioning of a protective order, if appropriate, under
NRCP 26(c) before their production is ordered. Rather than parse between
the elements of the malpractice and negligent hiring/supervision claims, I
would hold that the patient-litigant exception is triggered by Ravella's
claims against Mitchell and his employer and let the in camera review and
protective order afford the safeguards to prevent abuse of the exception.
‘ise-wo.•*"
Douglas
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SAITTA, J., dissenting:
I dissent.
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