Burns v. Boyden

• Decision Date: 03 March 2006
• Docket Number: No. 20050039.,20050039.
• Citation: 133 P.3d 370,2006 UT 14
• Parties: Dr. Brian D. BURNS, Petitioner, v. The Honorable Ann BOYDEN, a judge in the Third Judicial District Court, State of Utah, Respondent. State of Utah, Real Party in Interest.
• Court: Utah Supreme Court

133 P.3d 370

2006 UT 14

Dr. Brian D. BURNS, Petitioner, v. The Honorable Ann BOYDEN, a judge in the Third Judicial District Court, State of Utah, Respondent State of Utah, Real Party in Interest.

No. 20050039.

Supreme Court of Utah.

March 3, 2006.

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Michael N. Martinez, Sarah Lynn Mathews, Salt Lake City, for petitioner.

Brent M. Johnson, Salt Lake City, for respondent.

Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Daryl L. Bell, J. Denis Kroll, Jay Stone, Asst. Att'ys Gen., Salt Lake City, for real party in interest.

DURRANT, Justice:

¶ 1 This case presents two distinct issues: (1) whether Dr. Brian D. Burns may claim the physician-patient privilege as a shield against a state investigation into his allegedly fraudulent billing practices, and (2) whether a secrecy order obtained by the State respecting this investigation is constitutional. As to the first issue, rule 506 of the Utah Rules of Evidence provides a physician presumptive authority to claim the physician-patient privilege "on behalf of the patient." We hold that the State has rebutted this presumption by demonstrating that Burns is asserting the privilege not on behalf of his patients but for his own benefit. As to the second issue, Utah law allows the State, with approval and oversight from a district court, to conduct a criminal investigation in secret. Despite the secrecy order obtained by the State, Burns has adequate information about the investigation, and there are adequate procedural safeguards in place to effectively protect Burns's constitutional rights.

BACKGROUND

¶ 2 The Workers' Compensation Fund filed a complaint with the Salt Lake County Attorney's Office in response to what it believed were fraudulent billing practices employed by the chiropractic clinics owned and operated by Burns. The complaint was subsequently referred to the Attorney General's Office, Department of Insurance, Fraud Division, which submitted an application to the district court for an order to open a formal investigation pursuant to the Subpoena Powers for Aid of Criminal Investigation and Grants of Immunity Act ("Subpoena Powers Act"), Utah Code Ann. §§ 77-22-1 to -5 (2003). The application included a statement of good cause setting forth the facts necessary to support the investigation and a request for an order of secrecy.

¶ 3 The Subpoena Powers Act provides that a district court may allow an order of secrecy upon a "reasonable likelihood that publicly releasing information ... would pose a threat of harm to a person or otherwise impede the investigation." Id. § 77-22-2(6)(a)(i). The Attorney General argued that secrecy was justified because "publicly releasing information about the identity of this witness or the substance of the evidence regarding patients, providers, medical billing and records ... would pose a threat of harm to a person or would otherwise impede the criminal investigation due to the potential confidential nature of some of the matters in question." The State specifically noted the following: (1) Burns was in litigation with a former employee, and other employee-witnesses feared that cooperation with the investigation would lead to their own litigation with Burns; (2) many witnesses were still employed by Burns, and the State wished to avoid communication between witnesses; and (3) the State wished to protect Burns's reputation pending criminal charges as well as the names of his patients.

¶ 4 The district court authorized both the investigation and the secrecy order. The secrecy order required that the occurrence of interrogations, the identity of those subpoenaed, the testimony records, and other subpoenaed evidence remain secret. The order further excluded everyone from investigative hearings except for the State's attorneys and their staff, others necessary to assist the investigative process, the court reporter, the witness, and the witness's attorneys. The secrecy order specifically permitted the disclosure of its own existence but did not expressly permit the disclosure of the application, good cause affidavit, or authorization order. The secrecy order also permitted the Attorney General's Office to disclose information obtained during the investigation "for the purpose of furthering any official governmental investigation" or "when necessary for the State to comply with Utah Rule of Criminal Procedure 16 or any other obligation to disclose evidence to any such defendant before trial."

¶ 5 Subsequently, the State served Burns with a subpoena duces tecum, which sought the production of "[a]ll medical and billing records related to the treatment" of over 300 patients and ordered Burns to appear and give sworn testimony. Burns moved to quash the subpoena, arguing that (1) the subpoena duces tecum violated the physician-patient privilege, and (2) the secrecy order violated his due process rights. After a hearing, Judge Boyden denied the motion to quash, ruling that the physician-patient privilege did "not apply at this stage" and that the secrecy order did not violate Burns's due process rights. Burns subsequently produced the requested records and then filed the present motion for extraordinary relief to compel Judge Boyden to vacate her denial of the motion to quash. This court has jurisdiction under Utah Code section 78-2-2(2) (2002).

STANDARD OF REVIEW

¶ 6 This case is before us on a petition requesting extraordinary relief. Such petitions are governed by rule 65B of the Utah Rules of Civil Procedure, which provides that extraordinary relief may be available "[w]here no other plain, speedy, and adequate remedy is available." Utah R. Civ. P. 65B(a). Burns claims that he is eligible for rule 65B relief because he is not statutorily entitled to an appeal from the denial of his motion to quash, and "an inferior court ... has exceeded its jurisdiction or abused its discretion." Id. 65(d)(2). Both the existence of a privilege and the application of constitutional protections are questions of law, so we afford no deference to the district court's conclusions. Riddle v. Perry, 2002 UT 10, ¶ 6, 40 P.3d 1128 ("[T]he existence of a privilege is a question of law ...." (internal quotation marks omitted)); Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177 ("Constitutional issues ... are questions of law [reviewed] for correctness."). Ultimately, to determine whether rule 65B relief is appropriate, we must determine whether the district court made a mistake of law on either of these two questions that led it to abuse its discretion. See State v. Barrett, 2005 UT 88, ¶¶ 15-17, 127 P.3d 682.

ANALYSIS

¶ 7 Burns raises two main issues in his petition for extraordinary relief: (1) whether he may claim the physician-patient privilege to prevent disclosure of patient records to the State in the investigation into his allegedly fraudulent billing practices, and (2) whether a secrecy order obtained by the State respecting this investigation is constitutional. We will discuss each of these issues in turn.

I. BURNS MAY NOT CLAIM THE PHYSICIAN-PATIENT PRIVILEGE FOR HIS OWN BENEFIT

¶ 8 Burns argues that his patient records are protected from discovery under the physician-patient privilege. The district court held that the physician-patient privilege does not apply during a criminal investigation under the Subpoena Powers Act. The State now concedes that the privilege applies during such a criminal investigation but argues that there is an exception to the privilege where there are allegations of insurance fraud. We will address each of these arguments below, and then, because we hold that the physician-patient privilege applies to a criminal investigation under the Subpoena Powers Act and that there is no insurance fraud exception to the privilege, we will discuss whether the State has rebutted Burns's presumptive authority to claim the privilege.

¶ 9 Rule 506(b) of the Utah Rules of Evidence provides that a patient has a privilege to prevent disclosure of "diagnoses made, treatment provided, or advice given," as well as information obtained or disseminated as a result of an examination. Rule 506(c) specifies that the patient may claim the privilege and that the treating physician "is presumed to have authority ... to claim the privilege on behalf of the patient." Utah R. Evid. 506(c).¹ Rule 506(d) delineates three explicit exceptions to the privilege. Id. 506(d). We will first discuss the district court's conclusion that the privilege does not apply during a criminal investigation under the Subpoena Powers Act. We will next discuss the State's claim that there is an exception to the physician-patient privilege in cases of suspected insurance fraud. We will then discuss whether the State successfully rebutted rule 506(c)'s presumption that a treating physician has authority to claim the privilege.

A. The Physician-Patient Privilege Applies to a Criminal Investigation under the Subpoena Powers Act

¶ 10 In concluding that the physician-patient privilege does not apply at the investigation stage of this proceeding, the district court effectively concluded that the privilege does not apply during a criminal investigation under the Subpoena Powers Act. We disagree. The physician-patient privilege was not recognized at common law but has been adopted in Utah, first by statute and subsequently by rule. See State v. Anderson, 972 P.2d 86, 88 (Utah Ct.App. 1998). The purpose of the privilege is to promote full disclosure within a physician-patient relationship and thereby facilitate more effective treatment. See Anderson, 972 P.2d at 89; Brillantes v. Superior Court, 51 Cal.App.4th 323, 58 Cal.Rptr.2d 770, 778 (Ct. App.1996). The privilege serves to alleviate patients' fear that their medical records could be disclosed to the public and cause them embarrassment. Anderson, 972 P.2d at 89; Brillantes, 58 Cal.Rptr.2d at 778. We do not treat the policy underlying this privilege lightly and...