McKenzie v. Pierce

2012 Ark. 190, 403 S.W.3d 565

• Court: Supreme Court of Arkansas
• Decided: May 3, 2012
• Docket: No. 11-933
• Status: Published

Opinions

KAREN R. BAKER, Justice.

| ,This case arose from an order of the St. Francis County Circuit Court denying appellant Cleo McKenzie’s motion to quash several subpoenas duces tecum issued to his health-care providers for his medical records and for Rule 11 sanctions. Because resolution of the issues presented involve an extraordinary writ, our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1 — 2(a)(3) (2011). Because appellant has no other adequate remedy and because the proceedings are erroneous on the face of the record, we treat the appeal as a petition for a writ of certiorari and grant the writ.

Kayla Pierce and appellee Joshua Pierce were divorced on August 2, 2007, and Kayla was awarded custody of their minor child. On September 30, 2010, appellee filed a motion for a change of custody. Kayla Pierce McKenzie, now married to appellant, responded requesting that the motion be denied. Appellee asserted several grounds in support of his |2motion, including Kayla’s unstable marriage to appellant, appellant’s depression, and appellant’s lack of stability.

On June 13 and 14, 2011, appellee’s attorney caused subpoenas duces tecum to be served on the custodians of the records of two medical facilities requesting that the “medical/mental health records for Cleo McKenzie” be produced on June 23, 2011. On June 21, 2011, appellant filed a motion to quash, asserting that he was not a party to the custody dispute and that issuing the subpoenas violated his rights protected under Arkansas and federal law. He also sought sanctions pursuant to Arkansas Rule of Civil Procedure 11. At a hearing held on June 23, 2011, the circuit court ordered that the subpoenaed medical records be submitted to the court under seal but stated that they would not be reviewed by the circuit court at that time. The circuit court entered an order on June 23, 2011, denying the motion to quash and for Rule 11 sanctions. Appellant filed a notice of appeal from this order on June 24, 2011. On February 20, 2012, appellant filed with this court a motion to stay the lower court’s proceedings. On March 8, 2012, this court granted the motion in part and stayed the release of his medical and psychological records.

Both parties on appeal discuss other orders of the circuit court entered following the June 23, 2011 order denying the motion to quash. However, the notice of appeal states only that appellant “appeals from [that] order of the court denying his motion to quash, and his motion for Rule 11 sanctions.” Rule 3 of the Arkansas Rules of Appellate Procedure-Civil provides that a notice of appeal shall designate the judgment, decree, order, or part thereof from which the case is appealed. Orders not mentioned in the notice of appeal are not | ?,properly before the appellate court. Ark. R.App. P.Civ. 3(e); see also Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93. Thus, we limit our review to the June 23, 2011 order.¹

A discovery order is interlocutory and generally not appealable. See Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003). Specifically, an order denying a motion to quash a subpoena is not a final order for appeal purposes. In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992). It also is not an order that determines an action under Arkansas Rule of Appellate Procedure-Civil 2(a)(2). Id.; see also Ark. R.App. P.-Civ. 2(a)(2) (An appeal may be taken from an order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues an action.). Where no final or otherwise appealable order is entered, an appellate court lacks jurisdiction to hear the appeal. Ark Ins. Dep’t v. Baker, 358 Ark. 289, 188 S.W.3d 897 (2004). Because the order denying the motion to quash and for Rule 11 sanctions is not a final order, this court lacks jurisdiction to hear this case as an appeal. However, we may consider appellant’s appeal as a petition for extraordinary relief under the original jurisdiction of this court. See White v. Palo, 2011 Ark. 126, 380 S.W.3d 405.

There are two requirements that must be satisfied before this court will grant a writ of certiorari. Jordan v. Cir. Ct of Lee Cnty., 366 Ark. 326, 235 S.W.3d 487 (2006). The first | requirement is that there can be no other remedy but the writ of certiorari. Ark. Dep’t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003). Second, a writ lies where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Jordan, supra. These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Hanley v. Ark. State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998).

As noted above, appellant does not have a right of appeal from the circuit court’s order denying the motion to quash as it is not a final order. Also, even when a final, appealable order is entered, he still will not have a right to appeal as he is not a party to the custody dispute. An appellate court cannot act upon an appeal taken by one not a party to the action before the trial court except under two circumstances. Swindle v. Benton Cnty. Cir. Ct., 363 Ark. 118, 211 S.W.3d 522 (2005). First, appellate review may be had where a nonparty seeks relief under Arkansas Rule of Civil Procedure 60(k), which provides that an independent action may be filed to relieve a person from judgment who was not actually served with process. Id. The second exception arises where any appellant, though not a party, has a pecuniary interest affected by the court’s disposition of the matter below. Id. Neither exception applies here, and appellant has no other remedy except for the writ of certiorari.²

15 Ordinarily, a writ of certiorari will not lie regarding discovery matters. Monticello Healthcare Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. A discovery ruling is a matter well within the circuit court’s jurisdiction and discretion, and a writ of certiorari will not lie to correct any perceived error in the circuit court’s ruling. Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008). However, there are exceptions to the general rule. See, e.g., Ark. Democrat-Gazette, Inc. v. Brantley, 359 Ark. 75, 194 S.W.3d 748 (2004) (certiorari appropriate when the issue is not merely one of discovery).

We recognized an exception in Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000), that is dispositive of whether the writ should lie in this case. In Kraemer, the plaintiffs sought a writ of certiorari to preclude enforcement of an order permitting the defendants in a medical-malpractice action from calling as an expert witness one of the plaintiffs treating physicians. The plaintiffs argued that the circuit court’s order violated Arkansas Rule of Evidence 503, which prohibits any informal, ex parte contact or communication with the patient’s physician. We rejected the contention that the issue could be addressed on appeal if the plaintiffs did not prevail in the suit:

| cWe hold, therefore, that Rule 503(d)(3)(B) by its plain language forbids ex parte communication with the patient’s physician in the absence of the patient’s consent. Further, because the Rule also denies the court the authority to compel the patient’s consent, we also hold that the trial court erred in authorizing ex parte communication between Dr. Cloud and defense counsel without the plaintiffs consent. A writ of certio-rari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Here, it is apparent from the pleadings and the court’s order that the court’s order was inconsistent with the express language of the rule. Moreover, we are persuaded that an appeal of an adverse decision would not be an adequate remedy under the circumstances.

Id. at 492, 29 S.W.3d at 690-91. (Internal citation and footnote omitted.)

As in Kraemer, at the heart of this case is the physician-patient privilege, a privilege recognized in this State since 1838. See Revised Statutes of Arkansas (1838), Chapter 158, Section 22. The privilege is protected under Arkansas Rule of Civil Procedure 35, which permits discovery of medical records. Specifically, Rule 35(c)(1) provides that a party who relies upon his or her “physical, mental, or emotional condition as an element of his or her claim or defense shall, within 30 days after the request of any other party, execute an authorization to allow such other party to obtain copies of his or her medical records.” Ark. R. Civ. P. 35(c)(1) (2011). Again, appellant is not a party in the custody case.

The privilege also is protected in Arkansas Rule of Evidence 503. Rule 503 provides that “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist.” Ark. R. Evid. 503(b) (2011). However, “[tjhere is no privilege under this rule as to medical records or communications [ 7relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense.” Ark. R. Evid. 503(d)(3)(A) (2011).

Appellee argues that the subpoenas were issued to the medical providers “so that the court could determine if appellant had health, medication, or suicidal issues that should be addressed by the court.” The essence of this argument is that there is an exception to the physician-patient privilege for a court, as opposed to the litigants, to access a witness’s medical records. We reject this contention outright. Rule 503 gives the patient the privilege, not the courts. Ark. R. Evid. 503(b); see also Kraemer, supra. Moreover, an exception to the privilege exists only when a patient relies on his medical condition as part of his claim or defense in a proceeding. Ark. R. Evid. 503(d)(3)(A); see also Ark. R. Civ. P. 35. Appellant is not a party to the underlying custody dispute, and thus, he has presented no claim or defense in that matter.

Access to a nonparty witness’s medical information was addressed in Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000). There, Ashley Heath, the child eyewitness to a capital murder, waived the psychologist-patient privilege, permitting the defense access to her medical records. The defendant’s conviction was reversed, and on retrial, after Heath had obtained a new psychologist, she asserted the psychologist-patient privilege with regards to the new physician. The defendant sought access to the medical records but was denied, and on appeal, we held, that “Rule 503(d)(3)(A) clearly anticipates that the privilege is inapplicable only as to a party to a proceeding who brings his or her own physical, mental, or emotional | ^condition into issue.” Johnson v. State, 342 Ark. 186, 195, 27 S.W.3d 405, 411 (2000) (emphasis in original). We denounced the attempt to circumvent Rule 503 by calling into question a witness’s mental or emotional condition and held “that because Ashley Heath was not a party to the proceedings and did nothing to bring her own emotional condition into issue, she properly asserted her psychotherapist/patient privilege.” Id. Likewise, here, appellant did nothing to bring his medical condition into issue.

Appellee contends that there is no privilege for the fact that treatment was sought and received and cites to Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993), and State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). These cases are distinguishable. In Cavin, the defendant admitted to two medical personnel that he had killed someone, and we found that the statements were not confidential communications because there was no proof that the defendant was seeking treatment. Moreover, we said that the testimony of the medical personnel was admissible under the Rule 503(d) exception because the defendant’s defense of involuntary intoxication placed his medical condition in issue.

In Sypult, the circuit court ruled that the State could admit evidence that the defendant sought treatment, the type of treatment sought, and that the VA Hospital made a report in accordance with Arkansas law concerning the reporting of suspected child abuse to the proper authorities; however, any confidential statements between the defendant and his health-care providers were inadmissible. In an interlocutory appeal, the State contended that the confidential statements were admissible. This court disagreed and in dicta stated that there was no privilege with regard to the fact that Sypult sought and received treatment. Neither 19Cavin nor Sypult involved the admissibility of medical records.

Next, appellee asserts that appellant’s in loco parentis relationship to the minor child and his marriage to Kayla essentially make him a party to this action. We disagree. Party status is generally obtained by initiating an action through filing a complaint or responding to a complaint by answer. In re $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999). It is also possible to become a party by intervention under Arkansas Rule of Civil Procedure 24 or by joinder under Rule 19. Id. Neither rule applies here. Moreover, this argument is not well developed and not supported by citations to authority. We do not consider arguments without convincing argument or citations to authority. Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 291 S.W.3d 179 (2009).

Appellant’s mental health may be relevant to the underlying custody case; however, that analysis, as in any ease, must be based on admissible evidence. See Ark. R. Evid. 402 (2011) (All relevant evidence is admissible, except as otherwise provided by statute or by these rules.). The record reveals that appellant’s mental health was examined through other admissible evidence. A nonparty’s medical records cannot be subpoenaed under the circumstances presented in this case, and it is apparent from the pleadings and the June 23, 2011 order that a direct appeal would not be an adequate remedy. Accordingly, a writ of certiorari will lie. Appellant also seeks review of the denial of his motion for Rule 11 sanctions. In light of our holding that the motion to quash should have been granted, we remand for consideration the issue of whether Rule 11 sanctions are appropriate in this case.

Writ of certiorari granted.

hnHANNAH, C.J., and GOODSON, J., concur. CORBIN, GUNTER, and DANIELSON, JJ., dissent.

1 . On September 20, 2011, the circuit court denied the petition for change of custody and stated that appellant could retrieve his sealed medical records from the circuit clerk's office. On November 23, 2011, the circuit voided and vacated that portion of the September order which denied the petition for change of custody. Again, appellant’s medical records were subpoenaed, whereupon a stay of their release was obtained from this court. Because there remains an existing controversy as to whether the subpoenas must be quashed, the issue before us is not moot.

2 . The dissent would hold that appellant has an adequate remedy because he can seek a protective order pursuant to Arkansas Rule of Civil Procedure 26(c). Rule 26 provides in relevant part that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions.” Ark. R. Civ. P. 26(b)(1) (2011). Appellant’s medical records are privileged pursuant to Arkansas Rule of Evidence 503. Additionally, Rule 26(c) provides that a protective order may be sought "upon motion by a party or by persons from whom discovery is sought.” Here, appellant is neither a party, nor a person from whom discovery is sought. The subpoenas duces tecum in this case were issued to appellant’s medical care providers. Thus, the dissent is incorrect that appellant has a remedy pursuant to Rule 26(c).