Advantage Behavioral Health Sys. v. Cleveland, A19A0656

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMiller, Presiding Judge.
Citation829 S.E.2d 763
Parties ADVANTAGE BEHAVIORAL HEALTH SYSTEMS v. CLEVELAND, as Administrator of the Estate of Nicholas Cleveland et al.
Docket NumberA19A0656
Decision Date17 June 2019

829 S.E.2d 763

ADVANTAGE BEHAVIORAL HEALTH SYSTEMS
v.
CLEVELAND, as Administrator of the Estate of Nicholas Cleveland et al.

A19A0656

Court of Appeals of Georgia.

June 17, 2019


829 S.E.2d 764

Ronald Steve Boyter Jr., Christopher Michael Carr, Kathleen M. Pacious, Loretta L. Pinkston-Pope, Atlanta, Angela Ellen Cusimano, for Appellant.

Laura Wilson Speed, Michael Brian Terry, Michelle Izquierdo King, Chad Kaufman Lennon, Atlanta, for Appellee.

Miller, Presiding Judge.

Upon being discharged from a mental health care facility operated by Advantage

829 S.E.2d 765

Behavioral Health Systems ("Advantage"), Nicholas Cleveland committed suicide. Cleveland’s parents then filed this negligence and wrongful death action against Advantage, and Advantage filed a motion for a protective order, seeking to have portions of its records on Cleveland declared privileged. The trial court issued an order ruling that only some of the records were privileged and that Advantage lacked standing to assert the mental health privilege to exclude otherwise relevant evidence at trial. For the following reasons, we affirm the trial court’s ruling as to which records were privileged, but we reverse its ruling that Advantage lacked standing to assert the mental health privilege.

The record shows that on March 29, 2016, Cleveland presented at Athens Regional Medical Center with complaints and/or a history of suicidal thoughts, bipolar disorder, severe depression, hallucinations, and alcohol use disorder. Cleveland was examined by Dr. Edward Green, a member of the hospital’s emergency department, who completed a Form 1013 ordering that Cleveland be involuntarily committed to Vantage Point, a mental health care facility operated by Advantage.1 Cleveland received treatment at Vantage Point for two days until his discharge on April 1, 2016, and he committed suicide a few hours later.

In May 2016, Cleveland’s parents requested a copy of his medical records from Advantage, and Advantage produced all the records without redaction. In October 2016, Cleveland’s parents’ attorneys requested a certified copy of the medical records from Advantage, and Advantage again produced the records without redaction. In June 2017, Cleveland’s parents filed the instant action against Advantage,2 raising claims of wrongful death and professional negligence based on the allegation that Advantage failed to properly evaluate and treat Cleveland’s suicide risk and improperly discharged him given that risk.

Advantage filed a motion for a protective order, seeking rulings that certain disputed portions of the medical records be declared privileged3 under the mental health privilege provided for in OCGA § 24-5-501 (a) and that further disclosure of any privileged records be precluded. Advantage argued that, in addition to communications between Cleveland and mental health care providers and communications between the providers themselves, records of assessment, diagnosis, and treatment were privileged and therefore inadmissible as evidence at trial.

The plaintiffs opposed the motion, arguing that the disputed portions of the records, which they described as "diagnoses, medications, prescriptions, goals, plan[s] of treatment, orders, observations, assessments and non-mental health records," were not privileged. The plaintiffs asserted that under OCGA § 24-5-501 (a) only portions of the records reflecting communications between Cleveland and certain mental health care providers were privileged. The plaintiffs also argued that it appeared some of the records were not created by providers subject to the mental health privilege.

The trial court issued an order ruling that (1) only certain portions of the disputed records contained privileged information, and (2) Advantage did not have standing to assert the mental health privilege on behalf of Cleveland to exclude otherwise relevant evidence at trial.4 Regarding which portions of

829 S.E.2d 766

the records were privileged, the trial court found that the diagnoses, medications, and prescriptions were not privileged. Noting that OCGA § 24-5-501 (a) applies the mental health privilege to communications only, the trial court declined to construe the privilege against disclosure of confidential communications so broadly as to encompass diagnoses and medications prescribed, because doing so would render meaningless OCGA § 37-3-166 (a) (8.1), which provides that the non-privileged portions of mental health records may be released to the legal representative of a deceased person’s estate.

Regarding what it characterized as goals, observation orders/levels, objectives, and plans of treatment, the trial court found that many of these records were not privileged because they could not be characterized as confidential communications. Instead, the trial court found that they were expectations of staff and were not particularized to Cleveland as a result of any communications from him. Among these records were those indicating (1) that the facility had goals that Cleveland not be a danger to himself, take medications as prescribed, and decrease alcohol withdrawal symptoms; (2) that he would be encouraged to attend group therapy; and (3) how often staff members were checking on him. The trial court found that records indicating Cleveland’s stress level and his own comments on his stress level were privileged, reasoning that the records came from patient communication.

Regarding what it characterized as observations, the trial court stated that it determined whether the observations were the result of communication with Cleveland. The trial court found that several observations were privileged because they came from communications by Cleveland, arose immediately out of his communications, or were communicative in nature. Such records included indications of whether Cleveland had suicidal thoughts, how he slept, how much alcohol he drank, and his living and employment situation. The trial court found that other observations were not privileged because they were treatment-directed, were by the treatment providers, or reflected goals of treatment and conclusions of the providers. Such records indicated that Cleveland met with a social worker, had an appropriate appearance, was interacting well with others, watched television, was cooperative, and was in a detoxification program. The trial court found that a record summarizing a discussion between Cleveland and a treatment provider was privileged, and records indicating Cleveland’s description of his mood and whether he accepted or declined rehab were also privileged, but a record indicating he attended group therapy was not privileged.

The trial court found without discussion or explanation that the Form 1013 from Dr. Green was not privileged. The trial court found that a record showing that Cleveland had a "service class" of "psychiatric treatment" was not privileged because it simply concerned the fact of treatment. The trial court found that certain assessments reflected Cleveland’s answers to questions, and certain treatment goals were clearly developed as a result of communications with him, rendering both privileged. The trial court found that certain plans of care, including records indicating the future discussions a treatment provider planned to have with Cleveland and records consisting of general treatment goals and diagnostic information, were not privileged.

Next, however, the trial court ruled that Advantage did not have standing to assert the mental health privilege on behalf of Cleveland at trial, reasoning that Advantage was a stranger to the privileged communications between Cleveland and his individual mental health care professionals. The trial court stated that it "ma[de] no determination as to the testimony of any individual mental health care professional."5 We granted Advantage’s application for interlocutory appeal, and this appeal followed.

1. First, we address the plaintiffs’ argument that Advantage’s appeal should be dismissed due to its failure to file an enumeration of errors. We conclude that although Advantage has not filed or included in its

829 S.E.2d 767

appellant’s brief an enumeration of errors, it is apparent from the notice of appeal, the record, and the brief what errors Advantage asserts, and we decline to dismiss this appeal.

OCGA § 5-6-48 (f) provides:

Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed. ...

"The legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate." (Punctuation omitted.) Felix v. State , 271 Ga. 534, 538, 523 S.E.2d 1 (1999). Also, we are mindful of our Supreme Court’s cautioning that the APA is to be liberally construed so as to bring about a decision on the merits of every case...

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