Scheffey v. Chambers

Court of Appeals of Texas

Scheffey v. Chambers

790 S.W.2d 879, 1990 Tex. App. LEXIS 1366, 1990 WL 75703

CourtCourt of Appeals of Texas

DecidedJune 7, 1990

DocketC14-90-00126-CV

StatusPublished

Cited by10 cases

This text of 790 S.W.2d 879 (Scheffey v. Chambers) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Scheffey v. Chambers, 790 S.W.2d 879, 1990 Tex. App. LEXIS 1366, 1990 WL 75703 (Tex. Ct. App. 1990).

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MAJORITY OPINION

PAUL PRESSLER, Justice.

Relator, defendant in the underlying litigation, was a patient at Las Encinas Hospital in Pasadena, California. Plaintiffs in the underlying case, seek to obtain relator’s medical records from the hospital through a deposition upon written interrogatories of the custodian of the institution’s records. On February, 12, 1990, Respondent entered an order which allowed the subpoena of the medical records without an in camera inspection. Relator seeks a writ of mandamus to prevent disclosure of the records and asserts that the information is privileged. We conditionally grant the writ.

Plaintiffs below alleged medical malpractice by the relator. In 1983, the plaintiff incurred a back injury. Relator performed two surgeries to correct this injury. Approximately two months after the last surgery, relator was arrested for cocaine possession. He subsequently admitted himself to the hospital in California. The plaintiffs allege that relator negligently performed the surgery and was physically and mentally impaired at the time of the operation due to cocaine use.

Although the scope of discovery rests within the discretion of the trial court, Ginsburg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985), mandamus will lie to vacate orders which are void and for which there is no adequate remedy on appeal, or where there has been a gross abuse of discretion. State v. Sewell, 487 S.W.2d 716, 718 (Tex.1972). An abuse of discretion occurs when the trial court’s action is arbitrary, unreasonable or based upon a gross and prejudicial error of law, Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985), or is without [881]*881reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). By attacking the respondent’s order on the grounds of a clear-abuse-of-discretion, relator has assumed the heavy burden of establishing that the respondent lacked the discretion to make the decision entered because the facts and law required a different decision. Johnson, supra at 917-18.

The permissible scope of discovery includes “anything reasonably calculated to lead to material evidence”, Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984), but overly broad requests, harassment, or disclosure of privileged information exceeds that scope. General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983) (emphasis added). Tex.R.Civ.Evid. 509 and 510 set out the physician/patient privilege in Texas. Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to a patient are privileged and may not be disclosed. Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created by that physician are also confidential and privileged and may not be disclosed. The plaintiffs below contend that they are entitled to relator’s medical records under certain exceptions to these rules, namely Tex.R.Civ.Evid. 509(d)(4) and 510(d)(5). Exceptions exist where any party relies upon the physical, mental or emotional condition as a part of his claim or defense. These provisions are intended to prevent the offensive use of the physician/patient privilege (e.g., when a party places his physical or mental condition in issue and then attempts to offensively use a privilege to conceal evidence of that condition). Ginsburg, supra at 107; see also Dewitt and Rearick v. Ferguson, 699 S.W.2d 692 (Tex.App.—El Paso 1985, no writ). Relator did not bring the litigation, and he is not using the privilege offensively. Therefore, records of his medical treatment, diagnosis and evaluation are not under any exception under the Tex.R.Civ. Evid. and are privileged. Respondent clearly abused his discretion by opening all of the relator’s hospital records to discovery and by allowing the subpoena of the medical information. Mandamus is proper to vacate the order. West v. Solito, 563 S.W.2d 240, 246 (Tex.1978).

The decision of this court is based upon the facts presented. No in camera inspection was provided. If there is to be an in camera inspection, the respondent must order it. Loftin v. Martin, 776 S.W.2d 145, 147 (Tex.1989); Peeples v. Fourth Court of Appeals, 701 S.W.2d 635, 637 (Tex.1985).

The Writ of Mandamus is granted unless Respondent vacates his order allowing the subpoena.

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MAJORITY OPINION

PAUL PRESSLER, Justice.

Relator, defendant in the underlying litigation, was a patient at Las Encinas Hospital in Pasadena, California. Plaintiffs in the underlying case, seek to obtain relator’s medical records from the hospital through a deposition upon written interrogatories of the custodian of the institution’s records. On February, 12, 1990, Respondent entered an order which allowed the subpoena of the medical records without an in camera inspection. Relator seeks a writ of mandamus to prevent disclosure of the records and asserts that the information is privileged. We conditionally grant the writ.

Plaintiffs below alleged medical malpractice by the relator. In 1983, the plaintiff incurred a back injury. Relator performed two surgeries to correct this injury. Approximately two months after the last surgery, relator was arrested for cocaine possession. He subsequently admitted himself to the hospital in California. The plaintiffs allege that relator negligently performed the surgery and was physically and mentally impaired at the time of the operation due to cocaine use.

Although the scope of discovery rests within the discretion of the trial court, Ginsburg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985), mandamus will lie to vacate orders which are void and for which there is no adequate remedy on appeal, or where there has been a gross abuse of discretion. State v. Sewell, 487 S.W.2d 716, 718 (Tex.1972). An abuse of discretion occurs when the trial court’s action is arbitrary, unreasonable or based upon a gross and prejudicial error of law, Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985), or is without [881]*881reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). By attacking the respondent’s order on the grounds of a clear-abuse-of-discretion, relator has assumed the heavy burden of establishing that the respondent lacked the discretion to make the decision entered because the facts and law required a different decision. Johnson, supra at 917-18.

The permissible scope of discovery includes “anything reasonably calculated to lead to material evidence”, Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984), but overly broad requests, harassment, or disclosure of privileged information exceeds that scope. General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983) (emphasis added). Tex.R.Civ.Evid. 509 and 510 set out the physician/patient privilege in Texas. Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to a patient are privileged and may not be disclosed. Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created by that physician are also confidential and privileged and may not be disclosed. The plaintiffs below contend that they are entitled to relator’s medical records under certain exceptions to these rules, namely Tex.R.Civ.Evid. 509(d)(4) and 510(d)(5). Exceptions exist where any party relies upon the physical, mental or emotional condition as a part of his claim or defense. These provisions are intended to prevent the offensive use of the physician/patient privilege (e.g., when a party places his physical or mental condition in issue and then attempts to offensively use a privilege to conceal evidence of that condition). Ginsburg, supra at 107; see also Dewitt and Rearick v. Ferguson, 699 S.W.2d 692 (Tex.App.—El Paso 1985, no writ). Relator did not bring the litigation, and he is not using the privilege offensively. Therefore, records of his medical treatment, diagnosis and evaluation are not under any exception under the Tex.R.Civ. Evid. and are privileged. Respondent clearly abused his discretion by opening all of the relator’s hospital records to discovery and by allowing the subpoena of the medical information. Mandamus is proper to vacate the order. West v. Solito, 563 S.W.2d 240, 246 (Tex.1978).

The decision of this court is based upon the facts presented. No in camera inspection was provided. If there is to be an in camera inspection, the respondent must order it. Loftin v. Martin, 776 S.W.2d 145, 147 (Tex.1989); Peeples v. Fourth Court of Appeals, 701 S.W.2d 635, 637 (Tex.1985).

The Writ of Mandamus is granted unless Respondent vacates his order allowing the subpoena.

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790 S.W.2d 879, 1990 Tex. App. LEXIS 1366, 1990 WL 75703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scheffey-v-chambers-texapp-1990.

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