Cleghorn v. Hess

• Decision Date: 09 June 1993
• Docket Number: No. 22426,22426
• Citation: 109 Nev. 544,853 P.2d 1260
• Parties: , 61 USLW 2790, 125 Lab.Cas. P 57,416, 8 IER Cases 1047 Michael CLEGHORN, and Independent Guard Association of Nevada, Local 1, Appellants, v. Harrie F. HESS and Wackenhut Services, Inc., Respondents.
• Court: Nevada Supreme Court

Page 1260

853 P.2d 1260

109 Nev. 544, 61 USLW 2790, 125

Lab.Cas. P 57,416,

8 IER Cases 1047

Michael CLEGHORN, and Independent Guard Association of Nevada, Local 1, Appellants, v. Harrie F. HESS and Wackenhut Services, Inc., Respondents.

No. 22426.

Supreme Court of Nevada.

June 9, 1993.

Peter Alpert, Las Vegas, for appellants.

Thorndal, Backus, Maupin & Armstrong and Earle W. White, Las Vegas, for respondents.

OPINION

ROSE, Chief Justice:

FACTS

Respondent Wackenhut Services, Inc. (Wackenhut) is under contract with the United States Department of Energy (DOE) to provide security services at the Nevada Test Site and related nuclear weapons facilities in Nevada. Appellant Michael Cleghorn (Cleghorn) is a security inspector for Wackenhut and has been a Wackenhut employee since May 24, 1982. Under a contract with Wackenhut, respondent Harrie Hess (Dr. Hess), a licensed psychologist, examines, tests, and evaluates Wackenhut employees and applicants for employment to determine their psychological suitability for employment. The psychological testing is conducted in accordance with the terms of a collective bargaining agreement between Wackenhut and appellant Independent Guard Association of Nevada, Local 1 (IGAN), and as part of a medical and psychological suitability testing program for the DOE Human Reliability Personnel Assurance Program (PAP). As a condition of employment for security personnel, the DOE requires Wackenhut to employ only those persons who meet PAP medical standards.

Wackenhut referred Cleghorn to Dr. Hess for psychological testing on May 9, 1982 (pre-employment), and again on July 6, 1990. Cleghorn requested copies of his psychological records and test results pursuant to NRS 629.061. ¹ Dr. Hess and Wackenhut refused Cleghorn's repeated requests for copies of his psychological test results. Thereafter, Cleghorn brought an action for declaratory and injunctive relief, seeking to obtain the test results of his psychological testing. Dr. Hess and Wackenhut attempted to remove the action to federal court. On November 29, 1990, the United States District Court for the District of Nevada remanded the case back to the state district court. On January 16, 1991, IGAN was allowed to intervene on behalf of its members who were Wackenhut employees who had undergone psychological testing by Hess. All parties filed motions for summary judgment in the district court. The district court granted Hess and Wackenhut's motion for summary judgment, and denied the other motions.

LEGAL DISCUSSION

The sole issue on review is whether the district court erred in concluding that NRS 629.061 does not entitle Cleghorn and IGAN to obtain copies of their psychological test results. NRS 629.061 provides, in pertinent part: "1. Each provider of health care shall make the health care records of a patient available for physical inspection by: (a) the patient or a representative with written authorization from the patient...." Cleghorn and IGAN argue that NRS 629.061 entitles them to receive copies of the test results of the psychological testing done by Hess for the following reasons: (1) Hess is a provider of health care as defined in NRS 629.031; ² (2) Cleghorn and the IGAN members are patients because they are persons seeking medical services for examination or treatment; and (3) the records requested are medical records as defined in NRS 629.021. ³

Dr. Hess and Wackenhut assert that Hess is not a provider of health care under the statute. They further assert that Cleghorn and the IGAN members were not patients of Hess pursuant to NRS 629.061 because Hess did not provide health care to them, they did not expect any treatment from Hess, and the examinations were for the sole benefit of Wackenhut. Dr. Hess and Wackenhut contend that the examinations are similar to an independent medical examination performed prior to litigation during discovery because in either case no physician-patient relationship is contemplated or takes place.

As a licensed psychologist, Dr. Hess is clearly a "provider of health care" under NRS 629.031. The information sought by Cleghorn and IGAN are written reports and records produced by Dr. Hess containing information relating to Dr. Hess' examination of Wackenhut employees, including Cleghorn, and thus are "health care records" as defined in NRS 629.021. Although there is no definition of patient provided in Chapter 629, a "patient" is defined in our evidence statutes as "a person who consults or is examined or interviewed by a doctor for purposes of diagnosis or treatment." NRS 49.215(3). The word patient has similarly been defined as "a person seeking medical services for examination or treatment." See 46 Am.Jur. Proof of Facts 2d 395 (1986). The Wackenhut employees were undeniably interviewed and examined by Hess in order to determine their psychological suitability for employment. Dr. Hess and Wackenhut assert that Dr. Hess examined and evaluated Cleghorn and the IGAN members, but did not provide medical treatment to them. The distinction, if indeed one exists, between a psychological evaluation and psychological treatment, is hardly the determinative linchpin Dr. Hess and Wackenhut would have it be.

The cases relied on by Dr. Hess and Wackenhut generally deal with tort liability. Dr. Hess and Wackenhut argue that the examined employees are not "patients" because they do not receive nor do they reasonably expect medical treatment in connection with their employer-required examination. This determination is crucial to a medical malpractice case, where the duty of care, and hence liability, is defined by whether a doctor-patient relationship exists. See Felton v. Schaeffer, 229 Cal.App.3d 229, 279 Cal.Rptr. 713 (1991); Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3 (1977). However, it is not germane to the issue of whether employees should have access to psychological information that has been collected about them by their employer.

Furthermore, to say in the instant case that the employees were not patients because they did not receive treatment is to split hairs. The employees were tested, examined, and evaluated by a psychologist. The definition of "patient" utilized by other jurisdictions when considering tort liability is not necessarily appropriate in the instant case, and a more liberal definition of "patient" would be in harmony with the legislative intent behind the enactment of NRS 629.061. The intent of the legislature is the controlling factor in statutory interpretation. State, Dep't of Mtr. Vehicles v. McGuire, 108 Nev. 182, 184, 827 P.2d 821, 822 (1992). When the language of a statute is clear on its face, its intention must be deduced from such language. Id. The statute is clearly intended to provide, rather than prevent, access to medical records by specific persons, while at the same time protecting the patient's privacy rights: only the patient or patient's representative, the attorney general or grand jury, or an authorized representative or investigator of the state licensing board may access the medical records. See NRS 629.061. The Nevada Legislature set forth detailed requirements and procedures for the retention, copying, and inspection of a patient's medical records to facilitate the obtaining of that information. See NRS 629.011-629.081. A narrow interpretation of who is a patient would defeat the purpose of the statute. We therefore conclude that Cleghorn and the IGAN members are patients for the purposes of NRS 629.061.

Dr. Hess and Wackenhut further assert that the psychological examinations were conducted for the sole benefit of Wackenhut, and thus, no physician-patient relationship arose between Dr. Hess and the examinees. When an employee is required, as a condition of employment, to submit to a medical examination, that examination creates a relationship between the examining physician and the examinee, at least to the extent of the tests conducted. Green v. Walker, 910 F.2d 291, 296 (5th Cir.1990) (interpreting Louisiana law); see also Daly v. U.S., 946 F.2d 1467 (9th Cir.1991) (interpreting Washington law); Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974) (interpreting Maryland law). But see Beaman v. Helton, 573 So.2d 776 (Miss.1990). The duty of care imposed on the doctor performing those tests runs to the employee being examined as well as the employer. Green, 910 F.2d at 296. Whether the employee is called a "patient" or an "examinee" is irrelevant. The key factor here is that the Wackenhut employees are the ones who were tested, examined, and evaluated and should correspondingly have access to the results of that testing. Interestingly, the comprehensive collective bargaining agreement between Wackenhut and IGAN, the terms of which provide for the psychological testing of the employees, does not prohibit disclosure of the test results to the employees. One would therefore assume that the employees have a right to this information.

Wackenhut employees are examined, tested, and evaluated by Dr. Hess, a licensed psychologist, to determine if they are "psychologically suitable" for employment. Yet, after being subjected to this examination, the employees themselves are then denied access to the results of that testing. Adverse information in the employees' personnel files could, unbeknownst to the employees, materially affect their future, without the employees having had an opportunity to challenge the purported results. See, e.g., Quinones v. United States, 492 F.2d 1269 (3rd Cir.1974). Denying employees access to their own files allows employers to gather secret information on their employees with impunity. To prevent this type of injustice, many states have enacted legislation requiring private employers to permit employees to examine their own personnel files. ⁴

Dr. Hess and Wackenhut vehemently assert that the release of the employees' test results will pose an imminent danger to the entire Nuclear Explosives Safety Program...