Catrone v. Miles

• Decision Date: 26 June 2007
• Docket Number: No. 1 CA-SA 06-0277.,1 CA-SA 06-0277.
• Citation: 160 P.3d 1204,215 Ariz. 446
• Parties: Andrew CATRONE, as next friend of Patrick Catrone, his minor child, Plaintiffs/Petitioners, v. The Honorable Robert E. MILES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Mercy Healthcare Arizona, Inc., an Arizona corporation, dba St. Joseph's Hospital and Medical Center; Catholic Healthcare West, a foreign corporation, dba St. Joseph's Hospital and Medical Center; Louis G. Trunzo, M.D. and Joann Kolnick, husband and wife; North Valley Pediatrics, P.C., an Arizona professional corporation; North Valley Pediatrics-North Bell P.C., formerly known as North Valley Pediatrics-Tatum, P.C.; an Arizona professional corporation, Defendants/Real Parties in Interest.
• Court: Arizona Court of Appeals

160 P.3d 1204

215 Ariz. 446

Andrew CATRONE, as next friend of Patrick Catrone, his minor child, Plaintiffs/Petitioners, v. The Honorable Robert E. MILES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge Mercy Healthcare Arizona, Inc., an Arizona corporation, dba St. Joseph's Hospital and Medical Center; Catholic Healthcare West, a foreign corporation, dba St. Joseph's Hospital and Medical Center; Louis G. Trunzo, M.D. and Joann Kolnick, husband and wife; North Valley Pediatrics, P.C., an Arizona professional corporation; North Valley Pediatrics-North Bell P.C., formerly known as North Valley Pediatrics-Tatum, P.C.; an Arizona professional corporation, Defendants/Real Parties in Interest.

No. 1 CA-SA 06-0277.

Court of Appeals of Arizona, Division 1, Department B.

June 26, 2007.

Harris, Powers & Cunningham, PLLC by Frank I. Powers and John M. Matter, Phoenix, Attorneys for Plaintiffs/Petitioners.

Olson, Jantsch & Bakker, P.A. by Thomas G. Bakker and Jill L. Hirneisen, Phoenix, Attorneys for Defendant Catholic Healthcare West dba St. Joseph's Hospital and Medical Center.

Campbell, Yost, Clare & Norell, P.C. by Jeffrey J. Campbell and Erica J. Dickson, Phoenix, Attorneys for Defendants Trunzo, Kolnick, North Valley Pediatrics, P.C. and North Valley Pediatrics-North Bell, P.C.

OPINION

BARKER, Judge.

¶ 1 We treat in this special action several issues of first impression as to the discoverability of special education records. For the reasons that follow, we accept jurisdiction and deny relief from the trial court's order requiring their production in this case.

Facts and Procedural History

¶ 2 On January 9, 1999, Patrick Catrone ("Patrick") was born at St. Joseph's Hospital and Medical Center ("St. Joseph's") to Andrew Catrone ("Father") and Stephanie Catrone. Patrick was discharged from the hospital the following day. Because Patrick experienced health difficulties, his parents brought him back on January 13, 1999. Patrick was diagnosed with hyperbilirubinemia¹ and treated. Father filed a medical malpractice suit against St. Joseph's and certain medical professionals who provided care to Patrick (collectively "Defendants"). Father alleges that Defendants were negligent in diagnosing and/or treating Patrick and that as a result Patrick has suffered severe and permanent injuries. The alleged injuries include hearing loss, sensory motor deficits, neurobehavorial problems, communication disorders, and impaired cognitive functions.

¶ 3 Patrick's brother, Austin Catrone ("Austin"), was born of the same parents approximately one year before Patrick. During the deposition of Father, Defendants discovered that Austin was also in special education for his learning disabilities. The disabilities included speech and comprehension difficulties and cognitive impairments. In support of the theory that Patrick's impairments were genetic and not the result of allegedly negligent medical practices, Defendants moved to compel the production of Austin's medical and academic records. Patrick objected.

¶ 4 The trial court initially ordered the production of Austin's medical and academic records within his special education files subject to a protective order limiting disclosure of the records. In the first special action filed in this case, we reversed as to the medical records, finding that they were privileged and undiscoverable. Catrone v. Fields, 1 CA-SA 05-0062 (Ariz.App. Apr. 21, 2005) (mem.decision) ("Memorandum Decision"). That issue is not before us in this special action.

¶ 5 Concerning the academic records, we noted that "[i]t is plausible that, within Austin's scholastic records is information dealing with the diagnosis and treatment of physical, behavioral, and mental disorders, which may be privileged." Id. at 9. At the time of the special action, the academic records had not been submitted for in-camera review in the trial court. Id. We "le[ft] consideration of any alleged academic record privilege to the superior court" on remand. Id. at 8-9 n. 5.

¶ 6 Defendants then filed in the trial court a motion for in-camera review of Austin's academic records. The trial court concluded that Father had not established a "Special Education Records Privilege." The trial court then ordered that the records be submitted under seal for in-camera review to determine if the records contained any information subject to the physician-patient privilege. After conducting an in-camera review of the records, the trial court ordered production of the documents with the exception of certain pages and redactions of information subject to the physician-patient privilege. Due to the "significant privacy concerns" at issue, the trial court also ordered that the parties agree to and present to it a protective order for the documents.

¶ 7 Father filed a motion for reconsideration requesting that the trial court review the academic records again and exempt from production additional information specified in a revised privilege log. Father also asked the trial court to reconsider the discoverability of all the academic records on the grounds that Austin's privacy interests outweighed the need for the records. The trial court conducted a second in-camera review and specified further exemptions and redactions of information subject to the physician-patient privilege. The trial court denied the motion in all other respects, stating that "the fact that a school psychologist or physical therapist may have input into a student's educational evaluations and goals does not make the records related thereto `medical records.'" This special action followed.

¶ 8 Special action jurisdiction is highly discretionary. See State ex rel. McDougall v. Superior Court, 186 Ariz. 218, 219-20, 920 P.2d 784, 785-86 (App.1996). Jurisdiction is appropriate when there is no adequate remedy by way of appeal. Sun Health Corp. v. Myers, 205 Ariz. 315, 317, ¶ 2, 70 P.3d 444, 446 (App.2003). "Because an appeal offers no adequate remedy for the prior disclosure of privileged information, special action jurisdiction is proper to determine a question of privilege." Id. Accordingly, special action jurisdiction is appropriate here.

Discussion

¶ 9 Father raises three issues in this special action. First, are special education records protected by the medical records privilege created by Arizona Revised Statutes ("A.R.S.") section 12-2292 (Supp.2006)? Second, are special education records protected by an educational records and/or special education records privilege? Third, if they are not protected by privilege, did the trial court abuse its discretion in compelling production of the academic records? We address each issue in turn.

1. Medical Records Privilege

¶ 10 Father argues that Austin's special education records are privileged under the medical records privilege statute, A.R.S. § 12-2292.² The existence of a privilege is a legal issue that we review de novo. State v. Miles, 211 Ariz. 475, 477, ¶ 7, 123 P.3d 669, 671 (App.2005). "Privilege statutes, which impede the truth-finding function of the courts, are restrictively interpreted." Church of Jesus Christ of Latter-Day Saints v. Superior Court, 159 Ariz. 24, 29, 764 P.2d 759, 764 (App.1988).

¶ 11 "Unless otherwise provided by law, all medical records . . . are privileged and confidential." A.R.S. § 12-2292. The term "medical records" refers to

all communications related to a patient's physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including medical records that are prepared by a health care provider or by other providers.

A.R.S. § 12-2291(5) (Supp.2006). "Health care provider" is any "person who is licensed pursuant to title 32 and who maintains medical records." Id. at (4)(a). As it pertains to our inquiry, title 32 requires licenses for medical doctors, physical therapists, psychologists,³ occupational therapists, and behavioral health professionals. A.R.S. §§ 32-1455(A)(1) (2002) (medical doctors); 32-2021(A) (Supp.2006) (physical therapists); 32-2084(A) (2002) (psychologists); 32-3286(A) (Supp.2006) (behavioral health professionals such as social workers, counselors, and family therapists); 32-3421(A) (2002) (occupational therapists).

¶ 12 The United States Code of Federal Regulations defines special education as "specially designed instruction . . . to meet the unique needs of a child with a disability, including — (i) [i]nstruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings." 34 C.F.R. § 300.26(a)(1) (July 1, 2006), renumbered as 34 C.F.R. § 300.39(a)(1) (effective October 13, 2006).⁴ In the initial evaluation of the child, the evaluators must gather functional and developmental information to determine if the child has a disability and to determine the content of the child's individualized education program ("IEP"). 34 C.F.R. § 300.532(b) (July 1, 2006), renumbered as 34 C.F.R. § 300.304(b)(1) (effective October 13, 2006); 34 C.F.R. § 300.320(a) (July 1, 2006 and October 13, 2006). The regulations require that "[a]t least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher" participate in determining whether a child has a disability. 34 C.F.R. § 300.540(b) (July 1, 2006), renumbered as 34 C.F.R. § 300.308(b) (effective October 13, 2006). The IEP must include a statement of "[h]ow the child's disability affects the child's involvement and progress in the general curriculum." 34 C.F.R. § 300.347(a)(1)(i) (July 1, 2006), renumbered as 34 C.F.R. § 300.320(a)(1)(i) (effective October 13, 2006). The IEP must also contain "measurable annual goals" that meet the educational needs that result from the child's disability. Id. at (a)(2) (July 1, 2006 and October 13, 2006).

¶ 13 Father...