Abeyta v. Soos

• Decision Date: 19 February 2014
• Docket Number: No. 2 CA–SA 2013–0078.,2 CA–SA 2013–0078.
• Citation: 234 Ariz. 190,680 Ariz. Adv. Rep. 26,319 P.3d 996
• Parties: Gary ABEYTA, Petitioner, v. Hon. Bradley M. SOOS, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for The COUNTY OF PINAL, Respondent, and Sierra Tucson, Inc., An Arizona Corporation; and Heidi Sonntag, Real Parties in Interest.
• Court: Arizona Court of Appeals

234 Ariz. 190

319 P.3d 996

680 Ariz. Adv. Rep. 26

Gary ABEYTA, Petitioner,

v. Hon. Bradley M. SOOS, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for The COUNTY OF PINAL, Respondent,andSierra Tucson, Inc., An Arizona Corporation; and Heidi Sonntag, Real Parties in Interest.

No. 2 CA–SA 2013–0078.

Court of Appeals of Arizona, Division 2.

Feb. 19, 2014.

Kelly/Warner, PLLC By Garrick A. McFadden, Scottsdale, for Petitioner.

Renaud Cook Drury Mesaros, PA, By Charles S. Hover III, Phoenix, for Real Party in Interest Sierra Tucson.

Lewis Brisbois Bisgaard & Smith LLP By James K. Kloss and Bruce C. Smith, Phoenix for Real Party in Interest Sonntag.

Judge MILLER authored the decision of the Court, in which Presiding Judge VÁSQUEZ and Chief Judge HOWARD concurred.

OPINION

MILLER, Judge.

*192 ¶ 1 In this special action, petitioner Gary Abeyta challenges the order of the respondent judge (trial judge) denying his motion for a protective order, in which he asked that defendants Sierra Tucson, Inc. and Heidi Sonntag be prohibited from questioning him, a non-party fact witness, about his mental health treatment and attendant records that had been disclosed without his consent. “Special action review of an order compelling discovery over the objection of a party asserting a privilege is appropriate because there is no equally plain, speedy, or adequate remedy by appeal.” Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 3, 63 P.3d 282, 283 (2003); see also Ariz. R.P. Spec. Actions 1(a) (special-action jurisdiction warranted when no equally plain, speedy, or adequate remedy by appeal). It also is appropriate to accept special-action jurisdiction when, as here, the challenged ruling ultimately involves pure issues of law that require no further fact-finding. See Salvation Army v. Bryson, 229 Ariz. 204, ¶ 2, 273 P.3d 656 (App.2012). We therefore accept jurisdiction of this special action and, for the reasons stated below, grant relief.

Factual and Procedural Background

¶ 2 “When reviewing the superior court's denial of relief in a special action, we view the facts in the light most favorable to sustaining the court's ruling.” Hornbeck v. Lusk, 217 Ariz. 581, ¶ 2, 177 P.3d 323, 324 (App.2008). In April 2011, Abeyta began counseling with Sonntag, a licensed clinical social worker. He and Paul Bruno, the plaintiff in the underlying civil action, were engaged in a long-time domestic relationship and, on Sonntag's advice, Bruno eventually joined Abeyta in counseling.

¶ 3 Sonntag advised the couple that all communications with her “would be freely communicated to the other person,” and in the course of the counseling she “kept one, single chart.” She provided Abeyta and Bruno an informed consent for treatment form, which stated that in “relational counseling, all involved parties need to be present during counseling sessions. Counselor does not switch from individual counseling to relational counseling or visa versa.” During the course of counseling, Bruno and Abeyta exchanged electronic mail messages with Sonntag about their treatment.

¶ 4 In March 2012, Bruno checked into Sierra Tucson for inpatient treatment based on Sonntag's recommendation. While there, Bruno injured his back after a staff member required him to move his suitcase. Bruno brought an action against Sierra Tucson and Sonntag, alleging breach of contract, breach of the covenant of good faith and fair dealing, negligence, intentional misrepresentation, and infliction of emotional distress, all in relation to his stay and injury at Sierra Tucson.

¶ 5 In May 2013, Sonntag's attorney disclosed “a copy of the Bruno/Abeyta chart from their joint counseling with [her].” Sonntag also noticed Abeyta's deposition pursuant to subpoena. Asserting privilege, Abeyta objected to the disclosure of his records and sought a protective order against being required to submit to questioning about those records and his treatment during the deposition.

¶ 6 The trial judge denied the motion, finding Abeyta and Bruno had “engaged in joint counseling” with Sonntag and she had advised them “that all communications would be freely disclosed to the other person” and they had agreed. The judge noted that Sonntag maintained one chart for the joint counseling, which Sonntag's counsel intended to use in deposing Abeyta. Citing Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (App.1981), the judge concluded that because Abeyta had agreed to joint counseling and had “engaged in many written detailed communications with [Sonntag] regarding her methods of treatment of [Bruno],” Abeyta had waived any privilege.

Discussion

¶ 7 In his petition for special action relief, Abeyta contends the trial judge abused his discretion in denying Abeyta's motion for a protective order because he incorrectly applied this court's decision in Hahman and the relevant law of privilege. In a special action, we review the trial judge's ruling for an abuse of discretion, Rule 3, Ariz. R.P. Spec. Actions, and such an abuse encompasses an error of law, Twin City Fire, 204 Ariz. 251, ¶ 10, 63 P.3d at 284–85. The existence of a privilege is a legal question, and whether a privilege has been waived is a mixed question of law and fact; both are subject to our de novo review. Id.

¶ 8 Pursuant to A.R.S. § 32–3283(A), the confidential relationship between a licensed clinical social worker, such as Sonntag, and a patient “is the same as between an attorney and a client.” And, § 32–3283(A) provides that “a licensee shall not voluntarily or involuntarily divulge information that is received by reason of the confidential nature of the” counseling relationship “[u]nless a client waives this privilege in writing or in court testimony.” This privilege “prohibit[s] not only testimonial disclosures in court but also pretrial discovery of information within the scope of the privilege.” Bain v. Superior Court, 148 Ariz. 331, 333, 714 P.2d 824, 826 (1986) (discussing scope of psychologist-patient privilege, which, like behavioral health professional-patient privilege is equivalent to attorney-client privilege).

¶ 9 Abeyta asserts he did not waive his privilege “either in writing or in court testimony,” but rather has “steadfastly asserted the privilege.” Nothing in the record before us suggests Abeyta testified about his treatment with Sonntag. As to a written waiver, Sonntag relies on the informed consent for treatment form she provided to Abeyta. But, even if Abeyta had signed that form,¹ the form itself did not address the privilege between Sonntag and Abeyta, except to inform him that in counseling with more than one client, all parties need to be present.²

¶ 10 Under Arizona Administrative Code R4–6–1105(A), promulgated pursuant to A.R.S. § 32–3253(A)(1), “[a] licensee shall only release or disclose client records of any information regarding a client” “[i]n accordance with applicable federal or state law” or “[w]ith written authorization from the client.” Such a written authorization must include, inter alia, the name of the disclosing person, the purpose of the disclosure, the person or entity receiving the information, and a description of the record or information. Ariz. Admin. Code R4–6–1105(C). Likewise, under federal law, the Health Insurance Portability and Accountability Act's (HIPAA) privacy rule requires a detailed authorization for uses and disclosures of protected health information. See45 C.F.R. § 164.508(c); see also HIPAA Frequent Questions: Authorization Use & Disclosure, http:// www. hhs. gov/ hipaafaq/ use/ 264. html (last visited Jan. 17, 2014) (distinguishing between “consent for uses and disclosures of protected health information for treatment” and “ ‘authorization’ ” required “for uses and disclosures of protected health information not otherwise allowed by privacy rule). The consent for treatment on which Sonntag relies does not meet the requirements for a written consent for disclosure under the above rules. And we cannot say that, given its limited scope, which suggested, at most, that the client waived the privilege between those involved in joint counseling, it was sufficient to otherwise waive Abeyta's privilege.

¶ 11 Beyond a written authorization, however, in the context of the psychologist-patient privilege, our supreme court has determined that a patient may also waive the privilege by “pursu[ing] a course of conduct inconsistent with observance of the privilege.” Bain, 148 Ariz. at 334, 714 P.2d at 827. The court reached this conclusion based on its decision in Throop v. F.E. Young & Co., 94 Ariz. 146, 158, 382 P.2d 560, 568 (1963), quoting 8 Wigmore on Evidence § 2388, at 855 (McNaughton Rev.1961), in which it had ruled that a waiver occurs when a privileged claimant's conduct creates a situation in which “ ‘it would be unfair and inconsistent to permit the retention of the privilege.’ ” In other words, the privilege cannot be used as “ ‘both a sword and a shield.’ ” Id., quoting 8 Wigmore, supra, § 2388, at 855.

¶ 12 Sonntag argues that this is what Abeyta seeks to do. She maintains that because Bruno “placed his mental health at issue by suing” her, she is entitled to question Abeyta about various aspects of their counseling. And, she contends, Abeyta cannot object to her use of his records when Bruno has given at least some of the records to a third party and has indicated Abeyta will testify on his behalf about “the role ... Sonntag played in keeping him at Sierra Tucson” and his “loss of enjoyment of life.” Likewise, in his ruling, the trial judge also noted Bruno's claim of a “loss of enjoyment of life” as a factor in deciding Abeyta had waived his privilege.

¶ 13 Bruno's privilege waiver, however, does not similarly waive Abeyta's privilege. Under the administrative rules promulgated pursuant to A.R.S. § 32–3253(A)(1),

Where a licensee provides behavioral health services to more than one person in a family, each family member who is legally competent to...