Dauwe v. Musante
| Citation | 122 P.3d 15 |
| Decision Date | 03 October 2005 |
| Docket Number | No. 03CA1421.,03CA1421. |
| Parties | Daniel W. DAUWE, Plaintiff-Appellant, v. Jim MUSANTE, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Daniel W. Dauwe, Pro Se.
Pryor Johnson Montoya Carney & Karr, P.C., Elizabeth C. Moran, Felice S. Haas, Greenwood Village, Colorado, for Defendant-Appellee.
Plaintiff, Daniel W. Dauwe, appeals the summary judgment in favor of defendant, Jim Musante. We affirm in part, vacate in part, and remand for further proceedings.
A special advocate appointed by the court in plaintiff's dissolution of marriage case recommended that plaintiff enroll in the KidsWin program run by defendant. After completing the program, plaintiff made three written requests to defendant for a copy of his records under § 25-1-802, C.R.S.2004. When defendant failed to comply, plaintiff filed suit against him, alleging a violation of § 25-1-802 for failure to provide his patient records and seeking appropriate relief including compensatory damages, costs, and an order to comply with the statute. After the suit was filed, defendant offered to provide a summary of plaintiff's records upon payment of $20, but plaintiff did not respond.
Defendant filed a motion, with an affidavit, to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted. Plaintiff filed a response and also filed an amended complaint alleging breach of confidentiality. The court allowed the amended complaint. After the parties submitted additional motions and responses with attachments, the court treated defendant's motion as one for summary judgment and dismissed both claims.
Plaintiff contends that he is entitled to a copy of his records and that the trial court erred in determining there was no genuine issue of fact as to whether the records he requested under § 25-1-802 concerned "mental health problems." Defendant contends that, because they pertain to mental health problems, under the statute he is required to provide plaintiff only with a summary of his records upon payment of a reasonable fee. We conclude that further proceedings are required.
We review de novo an order granting summary judgment. Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608 (Colo.1998). Summary judgment is a drastic remedy and is only appropriate where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo.1999). In analyzing a summary judgment motion, we view all facts in the light most favorable to the nonmoving party; we give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the evidence; and we resolve all doubts as to the existence of a material fact against the moving party. See Redmond v. Chains, Inc., 996 P.2d 759 (Colo.App.2000); Schold v. Sawyer, 944 P.2d 683 (Colo.App.1997).
Section 25-1-802 provides in pertinent part:
Every patient record in the custody of . . . a person practicing psychotherapy . . . except records pertaining to mental health problems, shall be available to the patient upon submission of a written authorization-request for inspection of records . . . at reasonable times and upon reasonable notice. A summary of records pertaining to a patient's mental health problems may, upon written request and signed and dated authorization, be made available to the patient . . . following termination of the treatment program.
(Emphasis added.)
Here, the summary judgment set forth the following facts as undisputed:
The parties acknowledge that the records in question pertain to [p]laintiff's mental health problems . . . [p]laintiff has requested a copy of his records . . . [d]efendant has not provided [p]laintiff with a summary of his medical records . . . [and] [p]laintiff admits that he has not paid [d]efendant the $20 that [d]efendant requested for a copy of the summary of the records.
However, the statute does not define "mental health problems," and there is no evidence that plaintiff acknowledged the records pertained to such problems. As a result there is a dispute between the parties as to whether a copy of the records or only a summary should be provided to plaintiff.
Construction of a statute is a question of law. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). When construing a statute, we must determine and give effect to the intent of the General Assembly. Gianetto Oil Co. v. Indus. Claim Appeals Office, 931 P.2d 570, 571 (Colo.App.1996). In the absence of a definition by the General Assembly, the words and phrases used are to be construed according to their generally accepted meaning. Allstate Prods. Co. v. Colo. Dep't of Labor & Employment, 782 P.2d 880, 882 (Colo.App.1989)(citing Gonzales v. Indus. Comm'n, 740 P.2d 999 (Colo.1987)(discussing constitutional vagueness)).
Defendant argues that plaintiff's records "pertained to therapy for mental health problems." For guidance, he points to a statutory definition of "clinical mental health counseling" that includes:
(a) Assessment, counseling activities, consultation, and referral; and
(b) Treatment, diagnosis, testing, assessment, psychotherapy, or counseling in a professional relationship to assist individuals or groups to alleviate mental and emotional disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors that interfere with effective emotional, social, or intellectual functioning.
Section 12-43-601(2), C.R.S.2004.
Defendant also points out that as a licensed counselor he provides "professional counseling," which means
activities that assist the person receiving counseling in developing an understanding of personal, emotional, social, educational, alcohol and substance abuse, domestic violence, and vocational development . . . and in planning and effecting actions to increase functioning or gain control of his or her behavior in such areas. Such activities include, but are not limited to, skill-building in communications, decision-making, and problem-solving, clarifying values, promoting adaptation to loss and other life changes, developing social skills, restructuring cognitive patterns, defining educational and career goals, and facilitating adjustment to personal crises and conflicts.
Section 12-43-601(5)(a)(I), C.R.S.2004.
Additionally, defendant notes that while he is a licensed professional counselor, the disclosure provided to plaintiff refers to "psychotherapy." Section 12-43-701(3), C.R.S.2004, defines "psychotherapy" as
the treatment, diagnosis, testing, assessment, or counseling in a professional relationship to assist individuals or groups to alleviate mental disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors which interfere with effective emotional, social, or intellectual functioning. Psychotherapy follows a planned procedure of intervention which takes place on a regular basis, over a period of time.
Plaintiff does not dispute defendant's status as a psychotherapist, but argues that these records are not mental health records. His requests to defendant and his amended complaint refer to "patient records." He asserts they are records kept as a result of his participation in the KidsWin program, which provides counseling beyond mental health problems. He contends the program description does not limit itself to mental health problems, and defendant is a licensed counselor as well as a practicing psychotherapist whose duties go far beyond solely resolving or discussing mental health problems. As stated in a description of the program submitted by defendant, KidsWin is "designed to encourage co-parents to learn behaviors which support healthy child/family relationships, especially when an atmosphere of disturbing conflict, alienation, or emotional turmoil exists." The program consists of weekly group psychotherapy sessions, which focus on presenting techniques that can be put to use by participants.
Thus, central to the resolution of the issues before us is a determination of the meaning of "mental health problems." We conclude the record does not support a summary judgment determination that plaintiff acknowledges the records pertain to his mental health problems.
By using the word "except," § 25-1-802 recognizes a distinction between records pertaining to mental health problems and other records in the custody of a psychotherapist. Records that do not address mental health problems are not subject to the statutory limitations and should be released. The definitions defendant proffers do not use the term "mental health," and the "professional counseling" definition uses terms such as "skill-building," "decision-making," "problem-solving," and other common life skills. It is conceivable that not all matters addressed in the KidsWin program, and therefore not all the records, are directed solely at mental health problems.
The legislative history of § 25-1-802 does not define the term "mental health problems." Prior to its amendment in 1997, § 25-1-802 "except[ed] records pertaining to psychiatric or psychological problems." HB 1157 was amended on third reading to allow a "technical" substitution of the term "mental health" for "psychiatric or psychological" problems.
The discussion in the third reading contains the following:
Senator Tanner: I need for [sic] an amendment on third reading, a technical amendment.
Senate Body Leader (to Senator Tanner): Would you explain to the body the need for that third reading amendment?
Senator Tanner: The only thing we are doing, we are exchanging psychological and substituting mental health. This is the word that they use now because marriage counselors and a lot of other professionals in the mental health field come[ ]...
To continue reading
Request your trial
-
In re C.A.B.L.
...adopt factual findings from a previous case as long as the previous case involved the same parties and the same issue. Dauwe v. Musante, 122 P.3d 15, 20 (Colo.App.2004). However, a court may not take notice of facts on the issue the parties are litigating. Mun. Subdistrict v. OXY USA, Inc.,......