96 0777 La.App. 1 Cir. 12/20/96, Commitment of W.C., Matter of

• Decision Date: 20 December 1996
• Citation: 685 So.2d 634
• Parties: 96 0777 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 634

685 So.2d 634

96 0777 La.App. 1 Cir. 12/20/96

In the Matter of the COMMITMENT OF W. C.

No. CA 96 0777.

Court of Appeal of Louisiana,

First Circuit.

Dec. 20, 1996.

Mary Horrell, Baton Rouge, for petitioner/appellee, Department of Health & Hospitals.

Mr. Joseph Seyler, Jackson, for respondent/appellant, W.C.

Before WHIPPLE, PITCHER and FITZSIMMONS, JJ.

[96 0777 La.App. 1 Cir. 2] WHIPPLE, Judge.

This is an appeal by respondent, W.C., from a trial court judgment, judicially committing him to the East Louisiana State Hospital. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 28, 1996, Dr. Denise Graham, director of the East Louisiana State Hospital, filed a petition for judicial commitment of W.C. on the basis that he was gravely disabled. Prior to the hearing in this matter, the trial court ordered Dr. Francine Morrison, W.C.'s treating physician at East Louisiana State Hospital, to independently examine W.C. and file a written report with the court concerning the examination, pursuant to LSA-R.S. 28:54. The court further ordered that Dr. Morrison and Stacie Zerangue, the mental health social worker assigned to W.C. at East Louisiana State Hospital, appear and testify at the hearing on the petition for W.C.'s judicial commitment, which was conducted on March 15, 1996.

When called to testify, Zerangue was questioned without objection about W.C.'s place of residence, the location of any family, any contact his family had maintained with him with him and his age. However, when questioned about W.C.'s educational background, counsel for W.C. objected on the bases of hearsay, privilege and "the fact that [W.C.'s] medical record [had] not been properly put into evidence." The court overruled the objection, which was made general and continuing as to Zerangue's testimony. Thereafter, Zerangue testified about W.C.'s educational background, work history and behavior since his admittance to East Louisiana State Hospital.

Dr. Morrison then testified regarding her diagnosis of W.C. as suffering from paranoid schizophrenia, his behavior at the hospital, and her opinion that he was in need of judicial commitment.

[96 0777 La.App. 1 Cir. 3] At the conclusion of the hearing, the trial court rendered oral reasons finding that W.C. suffered from a mental illness which rendered him gravely disabled, he was in need of treatment and the least restrictive facility for his treatment was East Louisiana State Hospital. Accordingly, the trial court rendered judgment on April 11, 1996, judicially committing W.C. to East Louisiana State Hospital.

W.C. appeals, averring that the trial court erred:

(1) in permitting W.C.'s social worker to disclose confidential information where W.C. did not consent to the disclosure and where the statutory waiver of the health care provider-patient privilege in judicial commitment hearings did not apply; and

(2) in finding sufficient evidence had been presented to support judicial commitment of W.C. on the basis of grave disability. ¹

ASSIGNMENT OF ERROR NUMBER ONE

At the outset, W.C. states that this appeal was taken "to rectify the continuing irregularity of social workers testifying to the contents of their client's medical record." W.C. avers that pursuant to LSA-C.E. art. 510, a social worker may not breach a client's confidence in judicial commitment proceedings, and, thus, Zerangue's testimony was inadmissible.

Louisiana Code of Evidence article 510, ² entitled "Health care provider-patient privilege," provides that in civil proceedings, "a patient has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his [96 0777 La.App. 1 Cir. 4] health condition between or among himself or his representative, his health care provider, or their representatives." ³ LSA-C.E. 510(B)(1) (emphasis added). A "confidential communication" is defined in Section A of the article as follows:

(8)(a) "Confidential communication" is the transmittal or acquisition of information not intended to be disclosed to persons other than [persons involved in the patient's treatment].

(8)(b) "Confidential communication" includes any information, substance, or tangible object; obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by health care providers and their representatives.

LSA-C.E. art. 510(A)(8)(a) & (b) (emphasis added).

Pursuant to this article, any "confidential communications" made by W.C. to Zerangue are privileged. ⁴ Thus, the question presented is whether Zerangue's testimony with regard to W.C.'s educational background, work history and behavior at the hospital involved disclosure of confidential communications which should have been ruled inadmissible under LSA-C.E. art. 510.

We conclude that Zerangue's testimony as to W.C.'s educational background and work history was obtained by Zerangue as a confidential communication, in that this information was obtained either from W.C. or his representative for the purpose of advice, diagnosis, or treatment of W.C.'s [96 0777 La.App. 1 Cir. 5] condition. ⁵ See LSA-C.E. art. 510(A)(8)(b) & (B)(1); see also Sarphie v. Rowe, 618 So.2d 905, 908 (La.App. 1st Cir.), writ denied, 620 So.2d 1324 (La.1993) (patient's name is a privileged confidential communication). Thus, the trial court erred in allowing Zerangue to testify as to this information.

On the other hand, with regard to Zerangue's testimony as to W.C.'s behavior at the hospital, we conclude that this testimony did not constitute inadmissible disclosure of confidential communications. Zerangue testified that she had observed W.C. talking to himself, periodically and unpredictably repeating numbers, and then raising his hand, looking up and referring to demons.

Although the definition of confidential communication under LSA-C.E. art. 510 is broad, inherent in the definition are the concepts of something being expressed by one person to another ("any information ... obtained incidental to the communication process") and an intent that this information not be disclosed to others ("transmittal or acquisition of information not intended to be disclosed"). We cannot conclude that the definition of "confidential communication" is so broad as to include behavior of the patient where, as here, he was making no attempt to communicate with anyone, including persons involved in his treatment and where the behavior was merely observed by the health care provider. Such a holding would lead to a situation where evidence of behavior such as striking other patients or failure of the patient to provide for his basic physical needs would be inadmissible as privileged "communication."

We do not believe that article 510 was intended to be so far-reaching. Clearly, article 510 is concerned with protecting the confidences a patient communicates to his health care provider and the fact that disclosure of the [96 0777 La.App. 1 Cir. 6] patient's confidences could be detrimental to the health care provider-patient relationship. However, information regarding behavior of an inpatient in a mental hospital which is not derived through or from the communication process is beyond the reach of the article 510 privilege.

W.C. points to this court's opinion in Sarphie v. Rowe, 618 So.2d 905 (La.App. 1st Cir.1993), in support of the argument that this court should find that all observations of a patient's behavior are encompassed within the article 510 privilege. In Sarphie, this court stated that "when an individual walks into a doctor's office and opens his mouth, ... everything spilling out of it, whether it be his identity or his false teeth (a 'tangible object'), is presumptively privileged and beyond the reach of discovery." Sarphie, 618 So.2d at 908. However, Sarphie involved discovery of a patient name list from a chiropractic clinic and, thus, involved disclosure of information obtained through communication by the patient of his name to a doctor. Clearly, the pronunciation by this court was based upon the underlying concept of protecting the communication process between doctor and patient. Here, Zerangue's testimony regarding W.C.'s behavior was not based upon any communication between Zerangue and W.C.

Therefore, we conclude that while the trial court impermissibly allowed Zerangue to testify as to W.C.'s educational background and work history, her testimony regarding behavior she observed at East Louisiana State Hospital did not constitute disclosure of privileged communications pursuant to LSA-C.E. art. 510. Accordingly, the trial court did not err in allowing this testimony. ⁶

[96 0777 La.App. 1 Cir. 7] Also, the error by the trial court does not warrant reversal unless the error harmed or prejudiced W.C.'s cause. Boutte v. Winn-Dixie Louisiana, Inc., 95-1123, p. 9 (La.App. 3rd Cir. 4/17/96); 674 So.2d 299, 305. We conclude that any error in allowing Zerangue to testify as to W.C.'s educational background and work history, when compared to the record as a whole, was harmless and had no substantial effect on the outcome of the case. Thus, we conclude that the trial court's error in admitting this brief testimony was harmless.

ASSIGNMENT OF ERROR NUMBER TWO

W.C. next contends that the trial court erred in finding that there was sufficient evidence to judicially commit him. In order to subject a respondent to a judgment of civil commitment, the petitioner must show by clear and convincing proof that the respondent is dangerous to himself or to others or is gravely...