Ashenfelter v. Mulligan, 08-2075.

• Decision Date: 30 December 2010
• Docket Number: No. 08-2075.,08-2075.
• Citation: 792 N.W.2d 665
• Parties: Jerry L. and Susan ASHENFELTER, Appellees, v. Amy S. MULLIGAN, Appellant.
• Court: Iowa Supreme Court

792 N.W.2d 665

Jerry L. and Susan ASHENFELTER, Appellees,

v.Amy S. MULLIGAN, Appellant.

No. 08-2075.

Supreme Court of Iowa.

Dec. 30, 2010.

Jennifer H. Cerutti, Iowa Legal Aid, Sioux City, for appellant.

Elizabeth A. Rosenbaum, Sioux City, for appellees.

STREIT, Justice.

Amy Mulligan appeals a district court order allowing her parents, Jerry and Susan Ashenfelter, to review her medical and mental health records for purposes of their petition seeking grandparent visitation with Amy's son, A.M. This case has become moot because the ability to seek court-ordered grandparent visitation is now limited to grandparents whose own child has died. Because the issue of mental and medical health records in the grandparent visitation context is likely to reoccur, however, we choose to reach the issue. Amy has a statutory and constitutionalright to privacy in her medical and mental health records, and the Ashenfelters failed to override that right with a countervailing interest. The district court order is reversed.

I. Background Facts and Prior Proceedings.

Amy Mulligan and Alan Mulligan ¹ are parents to six-year-old A.M. Jerry and Susan Ashenfelter are Amy's parents and A.M.'s grandparents. Amy and Alan separated in December 2007 and had a pending dissolution action when the Ashenfelters sought visitation. Soon after Amy and Alan's separation, Amy decided it was in A.M.'s best interest not to see his grandparents (her parents), the Ashenfelters. The Ashenfelters filed a petition seeking grandparent visitation pursuant to Iowa Code section 600C.1 (Supp.2007).

The Ashenfelters served discovery requests on Amy seeking (1) a complete copy of Amy's 2008 commitment court file, including any and all reports, records, etc., submitted by Dr. Dean and/or Siouxland Regional Medical Center and Dr. Patra; (2) a complete copy of Amy's 2007 commitment court file, including any and all reports, records, etc., submitted by Dr. Dean, Dr. Patra, and Mercy Medical Center; ² (3) a complete copy of Amy's 2007 medical records for Mercy Medical Center; (4) a complete copy of Amy's 2008 medical records from Siouxland Regional Medical Center; (5) a complete copy of any and all records from Plains Area Mental Health regarding Amy from January 1, 2004, to present time; (6) a complete copy of any and all records regarding Amy from Jackson Recovery Center from January 1, 2004, to present time; (7) a complete copy of any and all records regarding Amy from Dr. Dean's office from January 1, 2004, to present time; and (8) any and all notes, records, or reports regarding Amy from counseling sessions at the Council on Sexual Assault and Domestic Violence (CSADV) and with Cathy VanMaanen from January 1, 2004, to the present time.

The Ashenfelters also presented interrogatories asking Amy to "[l]ist all physicians and medical providers and mental health providers and facilities who have provided care to you since January 1, 2004, by providing" the name of the provider, phone number and address of the provider, dates seen, reasons they saw Amy, and the last time Amy was treated by the provider. The interrogatories sought Amy's current mental health diagnosis and all medications currently prescribed to Amy, including the name, dosage, and frequency.

Amy moved for a protective order. The district court held that because the Ashenfelters must prove Amy is unfit to make a decision regarding grandparent visitation in order to obtain visitation, Amy's mental health is at issue. The court held that because Amy's mental health is at issue, the statutory physician-patient privilege in Iowa Code section 622.10 does not apply. The district court ordered production of all documents requested by the Ashenfelters except for the request relating to documents from the CSADV. The court also ordered Amy to answer all interrogatories.

We granted an application for interlocutory appeal and an emergency stay. We reverse.

II. Scope of Review.

Discovery decisions are typically reviewed for abuse of discretion. State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). However, this court reviews the interpretationof Iowa Code section 622.10 for correction of errors at law. Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996). Constitutional claims are reviewed de novo. Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001).

III. Merits.

A. Mootness. Amy filed a motion to dismiss based on grounds of mootness. We agree the case is moot. The Ashenfelters sought grandparent visitation with Amy's child, A.M., on August 21, 2008, under the then-existing grandparent visitation statute, Iowa Code section 600C.1. The Ashenfelters are Amy Mulligan's parents. Under section 600C.1 as it existed in 2008, grandparents could petition for grandparent visitation, provided they met the requirements of the statute: (1) the grandparents have a substantial relationship with the child, (2) the parent is unfit to make the decision regarding visitation, and (3) visitation is in the best interest of the child.

After the Ashenfelters's filed their petition, the Iowa legislature struck section 600C.1 in its entirety and replaced it. 2010 Iowa Acts ch. 1193, § 130. The new grandparent visitation section took effect July 1, 2010. The current section 600C.1 provides the right to petition for grandparent visitation "when the parent of the minor child, who is the child of the grandparent or the grandchild of the great-grandparent, is deceased." Iowa Code § 600C.1(1). Amy moved to dismiss because the Ashenfelters are her own parents, and because she is not deceased, the Ashenfelters do not have standing under the current section 600C.1 to seek visitation.

Application of the current section 600C.1 is straightforward and precludes the Ashenfelters' petition. "As a rule, every case must be determined on the law as it stands at the time judgment is pronounced." Windsor v. City of Des Moines, 110 Iowa 175, 179, 81 N.W. 476, 477 (1900). Although the "legislature cannot impair the obligation of contracts, nor by subsequent legislation disturb vested rights," here, as in Windsor, the parties' rights have not vested because there has been no final decree. Id.

This is a suit in equity, and is triable de novo in this court. Until final decree is passed, there is no vested right to be disturbed, and the case must be determined on the law as it now stands. These are elementary propositions....

Id. at 180, 81 N.W. at 477.

Amy also notes the legislative change to the grandparent visitation statute is a substantial change in circumstances which would allow modification of a grandparent visitation award. See Spiker v. Spiker, 708 N.W.2d 347, 358-59 (Iowa 2006) (holding ruling that grandparent visitation statute was unconstitutional entitled parent to seek modification of grandparent visitation award); cf. In re Marriage of Feustel, 467 N.W.2d 261, 265 (Iowa 1991) (holding a change in federal income tax law regarding claiming children as dependents constituted substantial change in circumstances). Although Spiker and Feustel both dealt with awards that were already entered, their reasoning suggests the Ashenfelters' petition should be dismissed. As this court noted in Spiker, the grandparents " 'have no power to require of the court continuing enforcement of rights the [grandparent visitation] statute no longer gives.' " Spiker, 708 N.W.2d at 358 (alteration in original) (quoting Sys. Fed'n No. 91, Ry. Emps.' Dep't, AFL-CIO v. Wright, 364 U.S. 642, 652, 81 S.Ct. 368, 373, 5 L.Ed.2d 349, 355 (1961)). Although the Ashenfelters had a statutory right to petition for grandparent visitation in 2008, they no longer have such a right in 2010.Because the Ashenfelters cannot require "enforcement of rights the grandparent visitation statute no longer gives," id., it follows that the Ashenfelters cannot be allowed to pursue a petition the statute no longer permits.

Although the case is now moot, we may choose to reach the basic underlying question after considering the following criteria: " '(1) the public or private nature of the question presented, (2) desirability of an authoritative adjudication for future guidance of public officials, and (3) likelihood of future recurrence of the same or similar problem.' " Rush v. Ray, 332 N.W.2d 325, 326 (Iowa 1983) (quoting Bd. of Dirs. of Ind. Sch. Dist. v. Green, 259 Iowa 1260, 1265, 147 N.W.2d 854, 856 (1967)). Here, we believe individual privacy interests in medical and mental health records presents an issue of great public interest. Also, we foresee this issue arising in the future, in the context of grandparent visitation as well as other civil contexts. Therefore, we proceed to address the issue.

B. Protection of Amy's Medical and Mental Health Records under Iowa Code Section 622.10. Amy argues her medical records are protected under Iowa Code section 622.10. Section 622.10 provides:

A practicing ... counselor, physician, ... [or] mental health professional, ... who obtains information by reason of the person's employment ... shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person's professional capacity, and necessary and proper to enable the person to discharge the functions of the person's office according to the usual course of practice or discipline.

Iowa Code § 622.10(1).

1. Applicability of section 622.10. Amy argues her medical and mental health records are protected from discovery by the privilege found in section 622.10. The Ashenfelters argue section 622.10 does not protect the records and information they seek because compliance with the discovery requests does not require disclosure "in giving testimony." See id.

In Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349 (1958), this court held a medical record could not be admitted into evidence because it was properly considered a privileged "communication" under Iowa Code section 622.10. Newman, 249 Iowa at 843-44, 89 N.W.2d at 354-55. Therefore, any attempt by the Ashenfelters to...