Hamilton v. Verdow, 4

CourtCourt of Appeals of Maryland
Citation287 Md. 544,414 A.2d 914
Docket NumberNo. 4,4
Parties, 10 A.L.R.4th 333 John HAMILTON, Superintendent, Spring Grove State Hospital et al. v. Walter E. VERDOW, Pers. Rep. of the Estate of Jason S. Verdow, Infant. Misc.
Decision Date23 May 1980

Randall M. Lutz, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellants.

Leroy W. Preston, Baltimore (O'Connor, Preston, Glenn & Smith, P. A., Baltimore, on the brief), for appellee.



Pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974, 1980 Repl.Vol.), § 12-601 of the Courts and Judicial Proceedings Article, the United States District Court for the District of Maryland has certified to this Court two questions of Maryland law. In general, they are (1) whether, in the circumstances of this case, Code (1957, 1979 Repl.Vol.), Art. 59, § 19, prohibits the discovery from a State mental hospital of a former patient's medical records, and (2) whether the doctrine of executive privilege prevents the discovery and the in camera inspection by the court of a confidential report prepared for and at the order of the Governor of Maryland.

The underlying facts are as follows. On several occasions, Arthur F. Goode, III, was a patient at Spring Grove State Hospital, located in Catonsville, Maryland. The most recent occasion began in September 1975, when Goode voluntarily entered the hospital as a condition of probation after he was found guilty of sexually molesting young boys by the District Court of Maryland sitting in Prince George's County.

In February 1976, Goode left the hospital and went to Florida to visit his parents. While in Florida, Goode killed a young boy, Jason S. Verdow. Afterwards, Goode returned to Maryland and then traveled to Virginia where he killed another youth, Kenneth Dawson. Goode was subsequently convicted of murder in Virginia and in Florida, and he is presently incarcerated in Florida awaiting execution.

The personal representative of the estate of Jason S. Verdow, the Florida murder victim, began this federal diversity action against the superintendent of Spring Grove State Hospital and two staff psychiatrists. The complaint alleged that although the defendants knew that Goode had frequently been convicted of sexually molesting young boys and had previously been diagnosed as a sexual deviate, they negligently recommended that Goode should be treated at Spring Grove rather than at a maximum security institution. The complaint further alleged that the defendants negligently diagnosed the severity of Goode's condition, resulting in a failure to prescribe an adequate method of treatment. Finally, the plaintiff asserted that the defendants permitted Goode to leave the institution without notifying any appropriate authority even though they knew that Goode had not responded to treatment and still possessed the capacity to commit criminal acts.

During the course of discovery, the plaintiff noted two depositions. The first was to the custodian of medical records at Spring Grove, by which the plaintiff sought to discover the medical records maintained by Spring Grove which related to Goode. The second notice was to Judge Alan M. Wilner of the Maryland Court of Special Appeals, and it was accompanied by a subpoena to produce a copy of an investigative report which concerned the handling of Goode at Spring Grove, and which was prepared by Judge Wilner while he was serving on the staff of the Governor of Maryland. The Maryland Attorney General filed motions for protective orders, asserting that the documents sought by the plaintiff were privileged and confidential by law. An affidavit claiming a "privilege as Chief Executive Officer of the State of Maryland" to withhold the Wilner Report from discovery was also submitted by the Acting Governor of Maryland. 1 In general, the affidavit alleged that the report was a confidential report, prepared for the purpose of future executive action in order to attempt to prevent other similar occurrences at state facilities, and contained opinions and recommendations for the Governor's use as well as other confidential, personal information relating to Goode.

The United States District Court initially ordered that the documents should be produced for an in camera inspection in order to determine the extent to which they were discoverable. By letter, the Attorney General of Maryland requested that the federal court reconsider its order for an in camera inspection or, in the alternative, certify to this Court the legal questions of whether the documents were privileged. Finding that there was no controlling precedent in the decisions of this Court, the United States District Court certified the following questions:

"(1) Do the provisions of Article 59 § 19, Annotated Code of Maryland (1978 Cum.Supp.) prohibit the discovery of a former patient's records at a facility, where the former patient has not expressly waived his privilege under C & JP Art., § 9-109, Annotated Code of Maryland (1974) for purposes of this litigation?

"(2) Is the investigative report concerning the circumstances surrounding the Arthur F. Goode, III, case, compiled in confidence for the Governor of Maryland at his request for the purpose of potential future executive action in order to attempt to prevent or minimize similar occurrences by identifying and assessing any deficiencies within the governmental systems, barred from discovery and in camera inspection by the federal court on the basis of executive privilege? " 2


The first certified question is whether Art. 59, § 19, of the Maryland Code prohibits the discovery of the medical records at Spring Grove State Hospital which relate to Goode unless he has expressly consented to their release for use in this litigation. Article 59, § 19, which is made applicable to Spring Grove by Art. 59, § 3(e), provides:

"Each facility which has, as patients, any persons admitted under the provisions of this subtitle, shall make and retain in a separate and secure area of the facility, complete records of each such patient. Such records shall contain copies of all data required by this article, and such additional information as may be required by the Department. Such records shall be open for inspection by persons designated by the Commissioner and in accordance with the provisions of § 9-109 of the Courts Article of the Code, but shall be closed to all other persons." (Emphasis supplied.)

The relevant provisions of § 9-109 of the Courts and Judicial Proceedings Article provide:

"(b) Privilege generally. Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental or emotional disorder.

"(d) Exclusion of privilege. There is no privilege if:

"(6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing suit on a policy of insurance on life, health, or physical condition."

Goode has previously authorized the release of the medical records at Spring Grove to various persons. In 1976, Goode authorized Wilbur C. Smith, III, his attorney in the Florida criminal proceedings, and Judge Wilner to examine, copy and have access to any personal, health or school records relating to him. In 1979, Goode signed a release requesting that Spring Grove Hospital release "any and all medical records, or physicians' records and reports . . . including . . . notes from any psychiatrist(s), notes from any psychologist(s), . . . and any other contained notes and data" to Henry R. Furr, administrator of the estate of Kenneth A. Dawson, the Virginia murder victim. Mr. Furr, as the administrator of Dawson's estate, has brought an action in the Circuit Court for Baltimore County against Spring Grove State Hospital, and Dr. Williams and Dr. Bartley, who are also defendants in this litigation. That Baltimore County suit involves substantially the same legal and factual issues as are presented in the instant case. To date, however, Goode has specifically refused to consent to the release of his medical records to the plaintiff in this action.

The plaintiff asserts that Goode has waived any privilege of confidentiality that he might have for the medical records at Spring Grove by authorizing the release of his records to Judge Wilner, to his attorney Mr. Smith, and to Mr. Furr. In addition, the plaintiff maintains that Goode waived any privilege by revealing all or part of the information contained in the records by his testimony in a deposition and in the various criminal proceedings against him.

In response, the defendants point to the principle that, under some circumstances, a waiver may be conditional and limited in scope. The defendants argue that because Goode has expressly refused to release his medical records to the plaintiff in the present case, his waiver was intended to be limited to those persons who were expressly authorized to examine the records. The waiver, according to the defendants, may not be construed to apply to the plaintiff here.

Referring particularly to Goode's authorization to Judge Wilner, the defendants contend that Goode only gave a qualified consent, and thereby demonstrated the lack of an intent to waive generally his privilege, because he stated that it was given "after discussion and explanation with my attorney."

In our view, by executing a release of his medical records to Mr. Furr, Goode has waived his statutory privilege with respect to the plaintiff in this case. Consequently, in light of our disposition of this issue on the...

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