In Re Columbia Valley Regional Medical Center

41 S.W.3d 797, 2001 Tex. App. LEXIS 1668, 2001 WL 253615

• Court: Court of Appeals of Texas
• Decided: March 8, 2001
• Docket: 13-00-726-CV
• Status: Published

Opinions

OPINION

RODRIGUEZ, Justice.

In this mandamus action, Columbia Valley Regional Medical Center (the hospital) seeks relief from a trial court’s order that requires production of nonparty labor and delivery records, and related nurses notes, in redacted form so that patient identity is not revealed. We hold, under the facts of this case, that the trial court abused its discretion in ordering the production of redacted nonparty medical records. Accordingly, we conditionally grant the petition for writ of mandamus.

Mandamus will issue to correct a clear abuse of discretion. See Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.1996) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig.proceeding). The trial court has no discretion to misinterpret or misapply the law; an abuse of discretion is committed when the trial court clearly fails to analyze or apply the law correctly. See Walker, 827 S.W.2d at 840.

The underlying action is for medical malpractice. The real party in interest, Sandra Cantu, individually and as next friend of Martha Esmeralda Rodriguez, a minor child, seeks production of nonparty medical records that concern deliveries where Nurse Brenda Mayo-Williams, a labor and delivery room nurse, was present in the delivery room. Cantu maintains she needs the records in order to determine whether it was Nurse Mayo-Williams, and not the doctor, who delivered her baby.

The hospital seeks relief on grounds that the trial court abused its discretion in compelling it to turn over those records because the records are privileged. It claims that redacting the names of the patients will not cure the problem because other information contained in the records could reveal the identities of the patients with minimal investigative work. Moreover, the hospital claims that the doctor, co-defendant Dr. Martha Martinez, has already admitted she delivered Cantu’s baby, and, thus, production is unnecessary. The hospital further argues that because certain portions of the documents are privileged, those documents are privileged in their entirety, and redaction does not defeat the privilege.

“Generally, confidential communications between a physician and patient are privileged and may not be disclosed.” Hogue v. Kroger Store, 875 S.W.2d 477, 480 (Tex.App.—Houston [1st Dist.] 1994, writ denied). Section 159.002 of the Texas Occupations Code and rule 509(c)(2) of the Texas Rules of Evidence specifically provide that records of the identity, diagnosis, evaluation or treatment of a patient are confidential and privileged and may not be disclosed. See Tex. Occ. Code Ann. § 159.002(b) (Vernon Supp.2001); Tex. R. Evid. 509(c)(2). Further, the Texas Health and Safety Code provides that all health care information found in hospital records is privileged and cannot be disclosed without authorization. See Tex. Health & Safety Code Ann. § 241.151(2) (Vernon Supp.2001). “Health care information” is defined as “information recorded in any form or medium that identifies a patient and relates to the history, diagnosis, treatment, or prognosis of a patient.” Tex. Health & Safety Code Ann. § 241.151(2) (Vernon Supp.2001).

Importantly, Cantu concedes that the medical records of the nonparties in the underlying litigation are privileged. Although there are a number of exceptions to this privilege, Cantu argues none. See Tex. Occ. Code Ann. §§ 159.003-.004 (Vernon 2000); Tex. Health & Safety Code Ann. § 241.153 (Vernon Supp.2001); Tex. R. Evid. 509(e).

Redaction of Identifying Information

Cantu asserts in her response to the petition for writ of mandamus that she seeks the medical records in redacted form so that patient identity is not revealed. Without providing this Court any supporting authority, Cantu contends that by redacting the identifying information, the privilege does not apply because the privacy rights of the nonparties are protected.

Cantu bases her argument on the language found in Texas Rule of Civil Procedure 196.1(c). That rule articulates, in pertinent part:

(1) Service of request on nonparty. If a party requests another party to produce medical or mental health records regarding a nonparty, the requesting party must serve the nonparty with the request for production under Rule 21a.

(2) Exceptions. A party is not required to serve the request for production on a nonparty whose medical records are sought if:

⅝ ⅜ ⅜ ⅜ ⅜ ⅝

(B) the identity of the nonparty whose records are sought will not directly or indirectly be disclosed by production of the records;

⅜ ⅜ ⅜ ⅝ ⅜ #

(3) Confidentiality. Nothing in this rule excuses compliance with laws concerning the confidentiality of medical or mental health records.

Tex. R. Civ. P. 196.1(c). While rule 196.1(c) contemplates redaction of identifying information from nonparty medical records in order to avoid service on that nonparty, it is only a notice requirement rule and in no way addresses the parameters of the substantive privilege. See Hecht & Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions, G-14 (Nov. 11, 1998). Cf. In re: Diversicare Gen. Partner, Inc., Diversicare Leasing Corp., Advocat, Inc., and Tex. Diversicare Limited Partnership d/b/a/ Goliad Manors, Inc., 2001 Tex.App. LEXIS-, at *-, 41 S.W.3d 788, 795 (Tex.App.—Corpus Christi 2001, no pet. h.) (orig.proceeding) (designated for publication) (holding redacted nonparty nursing facility records were not discoverable).

Rule 196.1(c) does not provide authority for Cantu’s contention that redaction of identifying information takes the records outside the scope of the nonparty’s privilege. Section 3 of the rule explicitly provides that “[n]othing in this rule excuses compliance with laws concerning the confidentiality of medical ... records.” Tex. R. Civ. P. 196.1(c)(3). Further, comment 8 to the 1999 rule changes specifically points out that “[r]ule 196.1(c) is merely a notice requirement and does not expand the scope of discovery of a nonparty’s medical records.” Tex. R. Crv. P. 196.1 cmt. 8 (1999). This rule does not imply that such records are or should be discoverable. See Hecht & Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions, G-14 (Nov. 11, 1998). The statutes and eviden-tiary rule clearly state that nonparty medical records are privileged.

Additionally, the redaction of only identifying information does not address the concerns regarding portions of the nonparty medical records relating to diagnosis, evaluation, or treatment. The rule does not limit confidentiality to cover only the identity of the patient. Allowing production of information regarding diagnosis, evaluation or treatment, would expand the scope of discovery of nonparty medical records, running afoul of the plain language of the privilege statutes.

We conclude, therefore, redaction of identifying information from nonparty medical records does not defeat the medical records privilege.

Redaction of All Privileged Information

During oral argument, Cantu’s counsel stated he would accept nonparty medical records with everything “totally whited out” except for what the records reveal about Nurse Mayo-Williams’s charting customs. This raises the issue of whether redaction of any or all privileged information will render the remainder of the medical records discoverable.

Our sister courts have held, in the context of information protected by the attorney-client privilege, that redaction of the privileged portion of the information will not then render the remainder of the document discoverable. See, e.g., In re Bloomfield Mfg. Co., 977 S.W.2d 389, 392 (Tex.App.—San Antonio 1998, orig. proceeding); Pittsburgh Coming Corp. v. Caldwell, 861 S.W.2d 423, 425 (Tex.App.—Houston [14th Dist.] 1993, orig. proceeding); Keene Corp. v. Caldwell, 840 S.W.2d 715, 720 (Tex.App.—Houston [14th Dist.] 1992, orig. proceeding); see also Austin v. State, 934 S.W.2d 672, 675 (Tex.Crim.App.1996) (disclosure of attorney’s verbal communication to client of trial date setting not subject to attorney-client privilege).

The purpose of the attorney-client communication privilege is to promote the free flow of communications between an attorney and client on matters involved in litigation by insuring the communications will not be subject to subsequent disclosure. See Keene Corp., 840 S.W.2d at 719 (citing Maryland Amer. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 458 (Tex.1982)); In re Bloomfield, 977 S.W.2d at 392 (citing Boring & Tunneling Co. of Am., Inc. v. Salazar, 782 S.W.2d 284, 289 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding)). The basis for the physician-patient and the mental health privileges, which includes the confidentiality of hospital records, is: (1) “to encourage the full communication necessary for effective treatment,” and (2) “to prevent unnecessary disclosure of highly personal information.” R.K., M.D. v. Ramirez, 887 S.W.2d 836, 839-40 (Tex.1994) (citing Ginsberg v. Fifth Court of App., 686 S.W.2d 105, 107 (Tex.1985); Ex Parte Abell, 613 S.W.2d 255, 262 (Tex.1981)). The similarity of purpose is apparent: to allow for complete communication without fear of disclosure, so that the professional can effectively render services. Accordingly, we believe the reasoning in the foregoing cases is applicable to issues involving the medical records privilege.

In the attorney-client context, the trial court does not have the authority to shield portions of documents from discovery through the redaction of information covered by the attorney-client privilege, while allowing production of the remainder of the document. See Pittsburgh Corning, 861 S.W.2d at 425. Once it is established that a document contains a confidential communication, the privilege extends to the entire document, and not merely to the specific portions related to legal advice, opinions or mental analysis. See id. The Pittsburgh Court concluded that “except in the rarest of circumstances, documents falling within the attorney-client privilege simply are not discoverable, even when they are interwoven with factual information.” See id. at 427.

It is not our intent, nor was it the intent of the Pittsburgh Court, to hinder discovery of relevant information in a lawsuit. See id. at 427; see also Diversicare, 2001 Tex.App. LEXIS-, at *-, 41 S.W.3d at 796. However, the allegedly relevant facts sought by Cantu are discoverable through other proper means of discovery, without forcing the production of privileged nonparty medical records which may also contain that factual information. See Pittsburgh Coming 861 S.W.2d at 425. There are appropriate remedies and discovery tools available to discern those facts without disturbing the “sanctity and necessity” of the nonparty patient’s medical records privilege. See id. at 427. Although we conclude that the hospital cannot be compelled to furnish nonparty medical records upon request, Cantu could seek the information by deposing the defendant nurse. Cantu could also take the depositions of other health care providers who were present in the operating room at the time of the delivery. Moreover, the hospital asserts that it has already presented co-defendant Dr. Martinez’s testimony that she delivered the infant.

Furthermore, and importantly, although Cantu couches her request as discovery of factual information regarding the conduct of Nurse Mayo-Williams, the information sought is, in fact, related to the treatment of the patient, and, as such, remains privileged information. To hold that this privileged portion of a nonparty’s medical records should be disclosed because it may arguably reveal facts related to the nurse’s charting customs, would annihilate the purpose of the privilege. See id.

Accordingly, we conclude, under the facts of this case, the redaction of any or all privileged portions of the nonparty medical records does not defeat the privilege.

Constitutional Right to Privacy

Furthermore, we conclude there is a constitutional right to privacy issue in this case. Apart from any statutory or evidentiary privileges that apply, the medical records of an individual have been held to be within the zone of privacy protected by the United States Constitution. See In re Xeller, 6 S.W.3d 618, 625 (Tex.App.—Houston [14th.] 1999, orig. proceeding) (citing Alpha Life Ins. Co. v. Gayle, 796 S.W.2d 834, 836 (Tex.App.—Houston [14th Dist.] 1990, no writ)); Op. Tex. Att’y Gen. ORD-370 (1983) (medical records not protected by statute may be protected by constitutional right to privacy); see also Op. Tex. Att’y Gen. ORD-1461 (1999) (constitutional right to privacy consists of the individual interest in independence in making certain kinds of important decisions, and the individual interest in independence in avoiding disclosure of personal matters).

In Xeller, the plaintiff sought medical reports on nonparty workers’ compensation claimants without their consent. Xeller, 6 S.W.3d at 625. The plaintiff argued that the physician-patient privilege and the right to privacy did not preclude him from obtaining redacted records. Id. However, because plaintiff did not dispute that the medical reports, inter alia, are privileged under the Medical Practice Act or the right to privacy, but only that the “litigation exception” applied, the court held that the documents, even in redacted form, were not discoverable. See id. (citations omitted). The court also held that, without nonparty consent, to the extent other documents required disclosure of the identity, diagnosis and treatment of the non-party claimants, those documents were also privileged. See id.; cf. Alpha Life Ins. Co. v. Gayle, 796 S.W.2d 834, 835-36 (Tex.App.—Houston [14th Dist.] 1990, orig. proceeding) (without arguing violation of privacy rights and confidentiality with or without redaction, relator requested redaction of names, addresses and personal information to protect privacy rights of nonparty claimants and confidentiality of their medical and health information contained in claims and underwriting files, and court allowed redaction, finding relator’s interest in protecting privacy rights of claimants clearly outweighed any right real parties in interest had to discover identifies of other claimants).

This Court has dealt with similar issues of privilege. In In re Dolezal, 970 S.W.2d 650 (Tex.App.—Corpus Christi 1998, orig. proceeding), we emphasized the importance of privacy rights with respect to medical records by opining that medical records are within a zone of privacy protected by the United States Constitution. Id. at 652. In Dolezal, the real party in interest sought the names of all patients seen by a physician at the request of a law firm. See id. This Court conditionally granted the petition because the trial court abused its discretion in ordering the production of such information. See id. at 654; see also In re Anderson, 973 S.W.2d 410, 411-12 (Tex.App.—Eastland 1998, orig. proceeding) (where plaintiff sought discovery of identity of persons who had made complaints against defendant physician, his clinic, or technician, court held information sought was privileged and not subject to discovery).

We conclude, therefore, the privacy rights of the nonparties in this case have been violated by ordering the production of their medical records.

Discovery Pursuant to Rule 192.3(a)

Cantu argues that because her discovery requests are proper and relevant to Nurse Mayo-Williams’s charting customs, rule 192.3(a) of the Texas Rules of Civil Procedure applies. However, rule 192.3(a) allows a party to obtain discovery regarding any matter that is not privileged and that is relevant to the subject matter of the pending case. See TEX. R. CIV. P. 192.3(a). Because we have determined the requested nonparty medical records in redacted form remain privileged, and information protected by a privilege is outside the scope of discovery, this argument is misplaced.

Accordingly, we hold, under the facts of this case, the trial court abused its discretion in ordering the production of redacted nonparty medical records. We are confident that the trial court will vacate its order requiring the hospital to produce those records. We, therefore, conditionally grant the hospital’s petition for writ of mandamus.

Dissenting Opinion by Justice J. BONNER DORSEY, joined by Senior Justice ROBERT J. SEERDEN (Assigned).