Bradley v. Eighth Judicial Dist. Court of Nev.

• Decision Date: 22 November 2017
• Docket Number: No. 70522,70522
• Citation: 405 P.3d 668
• Parties: Dr. Shera D. BRADLEY, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Douglas W. Herndon, District Judge, Respondents, and Dontae Hudson, an Individual; and the State of Nevada, By and Through Steven B. Wolfson, in his Official Capacity as District Attorney for the County of Clark, Real Parties in Interest.
• Court: Nevada Supreme Court

405 P.3d 668

Dr. Shera D. BRADLEY, Petitioner,

v.The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Douglas W. Herndon, District Judge, Respondents,andDontae Hudson, an Individual; and the State of Nevada, By and Through Steven B. Wolfson, in his Official Capacity as District Attorney for the County of Clark, Real Parties in Interest.

No. 70522

Supreme Court of Nevada.

FILED NOVEMBER 22, 2017

Kathleen Bliss Law PLLC and Kathleen Bliss and Jason Hicks, Las Vegas, for Petitioner.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Ofelia L. Monje, Deputy District Attorney, Clark County, for Real Party in Interest State of Nevada.

Karen A. Connolly, Ltd., and Karen A. Connolly, Las Vegas, for Real Party in Interest Dontae Hudson.

Law Offices of Franny Forsman and Franny A. Forsman, Las Vegas; Kice Law Group, LLC, and Stephanie B. Kice, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.

BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

OPINION

By the Court, STIGLICH, J.:

NRS 49.209 provides a general rule of privilege between psychologist and patient, subject to enumerated exceptions outlined in NRS 49.213. In this opinion, we address whether the privilege applies when a criminal defendant seeks records related to a patient who is court-ordered to partake in therapy, and whether, in this matter, an exception to the privilege exists based on state or federal law or the privilege being waived. Because we hold the privilege applies in this case and there was no applicable exception or waiver of the privilege, the district court's order mandating pretrial, in camera review of the privileged records is in error, and we grant the requested writ of prohibition.

FACTUAL AND PROCEDURAL HISTORY

J.A., a minor, was arrested while soliciting prostitution and was placed on probation through the juvenile court. As a condition of probation, J.A. was required to attend and complete counseling with petitioner Dr. Shera Bradley. Based on statements made by J.A. to the police, the State charged defendant/real party in interest Dontae Hudson with first-degree kidnapping, sex trafficking of a child under the age of 16, living from the earnings of a prostitute, and child abuse, neglect, or endangerment.

In his criminal case, Hudson filed a motion for discovery, which included requests for J.A.'s counseling, juvenile, and delinquency records. Hudson argued that the records were relevant in determining J.A.'s competence and credibility. The State opposed the motion, arguing that it was prohibited from obtaining and distributing confidential records. The district court ordered J.A.'s complete juvenile and delinquency records be provided for in camera review. An amended order required that Dr. Bradley disclose counseling records pertaining to J.A. for in camera review.

Dr. Bradley filed a motion to vacate the amended order, and Hudson filed a motion to compel Dr. Bradley to adhere to the amended order. The district court denied Dr. Bradley's motion to vacate and ordered the counseling records be submitted for in camera review but stayed the order, allowing Dr. Bradley to file the instant writ petition.

DISCUSSION

Petition for prohibition relief should be entertained

Dr. Bradley seeks alternative relief in the form of a writ of mandamus or prohibition. Although "[t]his court has previously issued a writ of mandamus compelling a district court to vacate a discovery order," Wardleigh v. Second Judicial Dist. Court , 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995), we have held "that prohibition is a more appropriate remedy for the prevention of improper discovery than mandamus," id. Accordingly, we consider Dr. Bradley's petition under the prohibition standard.

Generally, extraordinary relief is not available to challenge discovery orders because "[t]he law reserves extraordinary writ relief for situations where there is not a plain, speedy and adequate remedy in the ordinary course of law," and discovery orders can be adequately challenged on appeal from a final judgment. Mitchell v. Eighth Judicial Dist. Court , 131 Nev. ––––, ––––, 359 P.3d 1096, 1099 (2015) (internal quotation marks omitted); see also NRS 34.330. However, "this court has issued writs to prevent improper discovery orders compelling disclosure of privileged information." Coyote Springs Inv. v. Eighth Judicial Dist. Court , 131 Nev. ––––, ––––, 347 P.3d 267, 270 (2015). Here, Dr. Bradley is not a party to the criminal case and therefore will not have standing to seek review on appeal from a final judgment, and she seeks to prevent the disclosure of allegedly privileged material based on the psychologist-patient privilege. Therefore, we elect to exercise our discretion and entertain the petition to determine whether the communications between Dr. Bradley and J.A. are privileged and whether pretrial disclosure of J.A.'s counseling records is required by state or federal law or because the privilege has been waived.

Psychologist-patient privilege

Dr. Bradley argues that the sought-after counseling records are privileged because they concern treatment she provided as J.A.'s psychologist, and that she has asserted the privilege on behalf of J.A. Dr. Bradley also claims that none of the enumerated exceptions to the psychologist-patient privilege are applicable and alleges that disclosure of the counseling records would jeopardize the open but private nature of communication between therapist and patient, a cornerstone to treatment. Hudson argues that the counseling records are not privileged due to the mandatory nature of J.A.'s counseling or due to J.A.'s treatment being an element of a claim or defense, that disclosure is required under state law and federal constitutional law, and that the privilege has been waived by disclosures of confidential information to third parties.

The psychologist-patient privilege applies to Dr. Bradley and J.A.'s confidential communications and records

NRS 49.209 outlines the psychologist-patient privilege as a patient having the ability "to refuse to disclose and to prevent any other person from disclosing confidential communications between the patient and the patient's psychologist or any other person who is participating in the diagnosis or treatment under the direction of the psychologist, including a member of the patient's family." Confidential communication is defined as:

[C]ommunication ... not intended to be disclosed to third persons other than: (a) Those present to further the interest of the patient in the consultation, examination or interview; (b) Persons reasonably necessary for the transmission of the communication; or (c) Persons who are participating in the diagnosis and treatment under the direction of the psychologist, including members of the patient's family.

NRS 49.207(1). The privilege may be claimed by the patient or by the psychologist on the patient's behalf. NRS 49.211.

In her motion to vacate the district court's order requiring disclosure of J.A.'s counseling records, Dr. Bradley asserted that she was providing psychological treatment to J.A. and she was claiming the privilege on behalf of her patient. She further averred that her "records [were] solely based upon treatment," that they had not been created for law enforcement purposes, and that her interaction with J.A. had been "solely limited to treatment and [ ] had nothing to do with investigative work." Hudson does not provide evidence that the content of J.A.'s counseling records pertain to anything other than treatment. Accordingly, we hold that Dr. Bradley's confidential records pertaining to J.A. are privileged, unless an exception or waiver applies.

No exception to the privilege applies

NRS 49.213 outlines several exceptions to the psychologist-patient privilege. Notably, the statute does not contain a specific exception for material relevant to the defense in a criminal case. However, two exceptions are implicated in this matter. The statute declares there is no psychologist-patient privilege in the following circumstances:

3. For communications relevant to an issue of the treatment of the patient in any proceeding in which the treatment is an element of a claim or defense.

4. If disclosure is otherwise required by state or federal law.

NRS 49.213(3), (4). We consider each of these exceptions in turn.

J.A.'s treatment is not an element of a claim or defense under NRS 49.213(3)

Although this court has not directly addressed the exception outlined in NRS 49.213(3), we addressed an almost identical exception to the doctor-patient privilege in Mitchell v. Eighth Judicial District Court , 131 Nev. ––––, ––––,359 P.3d 1096, 1103 (2015).¹ In that case, we held that "[r]elevance alone does not make a patient's condition an element of a claim or defense," but rather, "the patient's condition must be a fact to which the substantive law assigns significance." Mitchell , 131 Nev. at ––––, 359 P.3d at 1103 (internal quotation marks omitted). We went on to discuss illustrative examples:

A defendant who pleads not guilty by reason of insanity, for example, has asserted a defense that has, as one of its elements, his insanity. Similarly, a disinherited child who challenges her father's will on the grounds he was incompetent has asserted a claim about her father's condition to which legal consequences attach: If proved, the condition alleged invalidates the will. In both instances, the patient's condition is an element of the claim or defense—not merely relevant —because the claim or defense fails unless the condition asserted is established in fact.

Id . (internal citations omitted).

While Mitchell addressed the doctor-patient privilege and its exception for records relevant to a condition that is an element of a claim or defense, we can discern no logical reason to treat differently the almost identical language of the psychologist-patient...