Andreatta v. Hunley

714 N.E.2d 1154, 1999 Ind. App. LEXIS 1281, 1999 WL 540812

• Court: Indiana Court of Appeals
• Decided: July 27, 1999
• Docket: 43A04-9806-CV-328
• Status: Published

Opinions

OPINION

MATTINGLY, Judge

Patricia and Livio Andreatta appeal the denial of their motion to quash, motion for protective order, and motion for sanctions. We restate the issues presented for review as follows: did the trial court’s order, which allowed an adverse party to obtain copies of Patricia’s medical records directly from her in-state health care providers through Trial Rule 34(C) subpoenas and from her out-of-state health care providers via signed medical authorizations, improperly prevent Patricia from asserting her physician-patient privilege?

We affirm.

FACTS AND PROCEDURAL HISTORY

Patricia Andreatta slipped and fell while she was a social guest of Wayne and Virginia Hunley on July 29, 1995. The Andreattas filed suit against the Hunleys, seeking damages for personal injuries she sustained in that fall. During the course of discovery, the Hunleys served interrogatories upon Patricia seeking information about her medical condition and treatment. In her answers to interrogatories, Patricia identified five health care providers. Patricia then requested her medical records from some of those providers. After she received those records, Patricia produced them for the Hunleys’ inspection.

On March 31,1998, the Hunleys served the Andreattas with proposed Trial Rule 34(C) requests for production and subpoenas for the production of medical records from Patricia’s medical providers located in Indiana. In compliance with Trial Rule 34(C), the Hunleys asked the Andreattas to “[p]lease advise if you have any objections to these requests,” R. at 22, and stated “If I do not hear from you otherwise, the requests will be served fifteen (15) days from the date of this correspondence.” Id. In addition, the Hun-leys served the Andreattas with medical authorizations for the release of Patricia’s records from her out-of-state medical providers. The information sought by the Hunleys included records relating to Patricia’s pre- and post-accident medical treatment.

On April 2, 1998, the Andreattas’ attorney objected to service of the subpoenas and requests for production, asserting that “your proposed request and subpoena would totally remove my client’s opportunity to assert a privilege objection to irrelevant medical records.” Id. at 24. Instead, the Andreattas’ attorney proposed that:

1. I will send you copies of the full and complete records you seek, unless any item is privileged, in which case I will let you know my objections so we can move to an in camera review.

2. We submit a stipulated order which allows you to obtain medical records ... directly from the provider after I have had a chance to review the same....

Id. at 24, 25 (emphasis in original).

That proposed order is not found in the Record. However, on April 24, 1998, the Andreattas’ counsel provided the Hunleys’ attorney with a copy of a joint order which set out the procedure the Andreattas wished to follow. That order, among other things, would have required the medical provider to make two copies of all the medical records requested and number each set of copies serially. If the Andreattas’ counsel reviewed his copy and had no objection, the second copy was to have been sent to the Hunleys’ counsel. If there was an objection, the medical provider was to segregate the records objected to and send those records directly to the trial court judge in a sealed envelope for an in camera review. The proposed order would have required the trial court to then review the records in camera and rule on the availability of the physician-patient privilege. The costs of this procedure were proposed to be assessed to the plaintiff and the defendant equally.

The Hunleys moved to compel discovery on April 29, 1998, asking the court to order Patricia to execute the medical authorizations to be sent to out-of-state medical providers and to allow the Hunleys to send the in-state nonparty requests for production and subpoenas. The Andreattas filed a motion to quash, a motion for protective order, and a motion for sanctions.

After a hearing, the trial court granted the Hunleys’ motion to compel, ordering Patricia to execute written medical authorizations to the out-of-state medical providers. Those authorizations were limited to treatment records relating to the portion of Patricia’s body injured in the slip and fall, and were not to “allow disclosure of past or current medical condition which is totally unrelated to the condition at issue.” Id. at 70. The trial court denied the Andreattas’ motions and this appeal ensued.

DISCUSSION AND DECISION

1. Non-Party Requests for Production

The grant or denial of a discovery motion is within the trial court’s discretion and will be overturned only for an abuse of discretion. Bethlehem Steel Corp. v. Sercon Corp., 654 N.E.2d 1163, 1170 (Ind.Ct.App.1995), reh’g denied. An abuse of discretion in this context occurs only if the order is unreasonable in light of all of the attendant circumstances and is prejudicial to a party’s rights. Cua v. Morrison, 626 N.E.2d 581, 583 (Ind.Ct.App.1993), adopted, 636 N.E.2d 1248 (Ind.1994).

The Andreattas contend that allowing the Hunleys to acquire Patricia’s medical records directly from her health care providers without allowing Patricia “to see exactly what will be disclosed, before disclosure, would undermine if not eliminate the party’s ability to assert meaningful, specific and timely privilege objections.” Appellant’s Brief at 14 (emphasis in original). They argue the trial court’s ruling violated our supreme court’s holding in Canfield v. Sandock, which delineated “the respective boundaries of the physician-patient privilege and the scope of discovery where the two are in conflict.” 563 N.E.2d 526, 528 (Ind.1990), reh’g denied. The Hunleys contend that Trial Rule 34(C) adequately protects the Andreattas’ physician-patient privilege.

Trial Rule 34(C) provides:

A witness or person other than a party may be requested to produce or permit [production of documents]. Such request shall be served upon other parties and included in or with a subpoena served upon such witness or person. Neither a request nor a subpoena to produce or permit as permitted by this rule shall be served upon a non-party until at least fifteen (15) days after the date on which the party intending to serve such request or subpoena serves a copy of the proposed request and subpoena on all other parties.

Ind.Code § 34-46-3-1(2) provides that physicians shall not be required to testify regarding matters communicated to them by their patients in the course of their professional business. As our supreme court explained in Collins v. Bair, 256 Ind. 230, 268 N.E.2d 95 (1971), the physician-patient privilege:

has been justified on the basis that its recognition encourages free communications and frank disclosure between patient and physician which, in turn, provide assistance in proper diagnosis and appropriate treatment. To deny the privilege, it was thought, would destroy the confidential nature of the physician-patient relationship and possibly cause one suffering from a particular ailment to withhold pertinent information of an embarrassing or otherwise confidential nature for fear of being publicly exposed.

Id. at 236, 268 N.E.2d at 98.

However, the physician-patient privilege is not absolute. When a party places his or her physical condition at issue, that patient has impliedly waived the physician-patient privilege as to those matters which are causally and historically related to the condition put in issue and which have direct medical relevance to the claim. Canfield, 563 N.E.2d at 529. Information which would otherwise be protected from disclosure by privilege then becomes subject to discovery. Owen v. Owen, 563 N.E.2d 605, 608 (Ind.1990), reh’g denied.

The Andreattas characterize Canfield as teaching that “direct disclosure of medical information poses the risk that privileged matters will be improperly discovered before meaningful objections can be filed and the matter heard in camera by the Court.” Appellant’s Brief at 14. They contend that “[t]he trial rules will not be construed to allow direct access to medical information without the right of the patient to know precisely what is to be produced, before production, so that the patient can raise any privilege objections he or she deems appropriate.” Id. at 13.

When a patient who is a party to a lawsuit places her physical condition at issue, as has Patricia in the case before us, the patient has impliedly waived the physician-patient privilege as to that condition. Canfield, 563 N.E.2d at 529. The Andreattas correctly note that certain medical records can be protected from disclosure because of the physician-patient privilege. See id. at 530 (“Medical information which is unrelated to the condition in issue and irrelevant to the cause remains privileged and therefore protected from discovery.”). However, once the physician-patient privilege has been invoked, the burden is upon the party claiming it to prove his entitlement to its protection:

[T]he bare assertion of a claim of privilege will not suffice to block discovery of the information sought by the discovery request. Rather, the trial court must review the contested materials and determine whether the claim of privilege is justified or mistaken and whether production of the requested documents should be barred or compelled.

Id. at 531.

[I]n those rare cases where the physician-patient privilege is properly invoked, it is incumbent on the party seeking to assert the privilege to identify to the court specifically which documents are believed to remain within the privilege, after which the court will review the contested documents in camera to ascertain their entitlement to the protection of the privilege.

Owen, 563 N.E.2d at 608.

We accept the Andreattas’ premise that a plaintiff, or other party about whom records may be produced, has the right to review those records to determine whether production of some of those documents is protected by the physician-patient privilege. However, we believe the trial court’s order did not divest the Andreattas of that right.

The burden of proving that a medical record implicates the physician-patient privilege and should not be produced lies on the party seeking to assert the privilege. Id. The An-dreattas have not met that burden. Effective February 1, 1995, Trial Rule 34(C) was amended to provide, for the first time, that non-party requests for production and subpoenas were not to be served on the non-parties until fifteen days after they had been served on opposing counsel. This fifteen-day period allows a plaintiff or defendant an opportunity to object to the non-party request. The Andreattas did object within this time period. However, in the hearing on the motion to compel the Andreattas admitted that they already had copies of some of the medical records.¹ They also admitted that they had not requested copies of other records.² Further, the Andreattas’ counsel admitted that either the documents reviewed were not privileged, or he did not anticipate any privilege objection to the records not yet reviewed.

Under Ind.Code § 16-39-1-1(c), a health care provider must supply a patient with all health records possessed by that provider concerning the patient upon written request and reasonable notice. There is no indication in the record that anything precluded the Andreattas or their attorney from obtaining or reviewing Patricia’s medical records. As a result, we believe the Andreattas had a full opportunity to review Patricia’s records. They did, in fact, review some of the records; with regard to the records they did not review, we observe that there was a period of more than a month between the time the Andreattas received copies of the non-party requests and the hearing on the motion to compel. This was ample time for the An-dreattas to request and obtain those records.³

The Andreattas argue, however, that according to Canfield and Cua, they are entitled to review the records which will be sent to opposing counsel before those records are provided. They also urge us to adopt the tortuous procedure of requiring medical providers to make two copies of all records, number them and send them to counsel. We decline to impose such a procedure upon medical providers or our trial courts, as we read neither Canfield nor Cua as grafting this requirement onto Trial Rule 34(C).

Our supreme court expressly adopted our opinion in Cua, in which we disapproved the practice of allowing a defense counsel to interview plaintiffs doctor without plaintiffs counsel present because the plaintiff “would have no opportunity to exercise the privilege if she or her counsel could not be present during the interview.” 626 N.E.2d at 584. That is not the situation in the present case. The Andreattas have either reviewed the medical records themselves or had the opportunity to review those records and declined to do so. The trial court did not err in denying the Andreattas’ motions.

2. Medical Authorizations

The Andreattas argue the trial court exceeded its authority by ordering Patricia to execute medical authorizations which allowed the Hunleys to obtain Patricia’s medical records directly from out-of-state medical providers. Generally, matters concerning discovery methods that the trial rules do not govern are matters for a trial court’s exercise of discretion. Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind.1994). Because the scope of discovery is highly dependent on the facts of each case, the fact-sensitive nature of discovery issues requires a high degree of deference to the decision of the trial court. Steele v. McDonald’s Corp., 686 N.E.2d 137, 142 (Ind.Ct.App.1997). We will interfere with a trial court’s ruling on discovery matters only where an abuse of discretion is apparent. Brown v. Dobbs, 691 N.E.2d 907, 909 (Ind.Ct.App.1998). An abuse of discretion occurs only where the trial court’s decision is against the logic and circumstances of the case. Id.

In this case, the Hunleys would be unable to issue a subpoena for Patricia’s medical records under Trial Rule 34(C) to an out-ofrstate medical provider. The trial court acted within its discretion in ordering Patricia to sign medical authorizations so that the Hunleys could obtain those medical records from out-of-state medical providers. Those authorizations were limited to treatment records relating to the portion of Patricia’s body injured in the slip and fall, and were not to “allow disclosure of past or current medical condition which is totally unrelated to the condition at issue.” R. at 70. There is no indication that the Andreattas could not have obtained and reviewed these out-of-state records prior to the medical authorizations. Thus, we cannot say the trial court abused its discretion.

CONCLUSION

The trial court did not abuse its discretion when it permitted the Hunleys to obtain Patricia’s medical records from her medical providers when the Andreattas had already reviewed, or had ample opportunity to review, the records. Nor did it abuse its discretion by requiring Patricia to sign medical authorizations so the Hunleys could obtain her medical records from out-of-state health care providers.

The trial court’s orders are affirmed.

Affirmed.

NAJAM, J., concurs. FRIEDLANDER, J., dissents with separate opinion.

1 . The hearing included the following exchange:

Court: Why don’t you know [what is in the record]? You represent the Plaintiff. Couldn’t you get a medical release and get these?

Counsehl’ve already got records like that, your Honor, in this case and I have no objection and have produced those.

R. at 112.

Court: But you’ve reviewed those records and you can object to anything that is, that you maintain has a privilege.

Counsel: That is true....

Id. at 116.

2 . Court: Why don't you have those records already?

Counsel: Frankly, they are not related. X see no reason to get them, but if he wants them, I’ll get them and review them, and I’ll certainly give them to him if there's not privileged material.

R. at 122.

3 .This case does not present a situation where a plaintiff represents to the trial court that she had tried to obtain the medical records to review but had not yet received them or had an opportunity to review them. Our holding here might well have been different had those been the facts before us.