Heaphy v. Metcalf
| Citation | 249 Ariz. 210,468 P.3d 763 |
| Decision Date | 18 June 2020 |
| Docket Number | No. 2 CA-SA 2020-0001,2 CA-SA 2020-0001 |
| Parties | Shirley HEAPHY, Personal Representative of the Estate of Charles Heaphy, Petitioner, v. Hon. D. Douglas METCALF, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Willow Canyon Healthcare, Inc. dba Pueblo Springs Rehabilitation Center; Nicholas Bastiampillai, D.O.; Quince Holdings, LLC, Real Parties in Interest. |
| Court | Court of Appeals of Arizona |
Law Office of JoJene Mills P.C., Tucson, By JoJene E. Mills
Jacoby & Meyers Law Offices, Tucson, By Bonnie S. Dombrowski
Goldberg & Osborne LLP, Tucson, By Lisa M. Kimmel, Counsel for Petitioner
Ensign Services Inc., Higley, By Michael J. Ryan and Michael S. Redhair, Counsel for Real Party in Interest Willow Canyon Healthcare, Inc.
Cavett & Fulton P.C., Tucson, By Dan Cavett and Anne Fulton-Cavett, Counsel for Real Party in Interest Nicholas Bastiampillai, D.O.
Miller, Pitt, Feldman & McAnally P.C., Tucson, By Stanley G. Feldman
Ahwatukee Legal Office P.C., Phoenix, By David L. Abney
Levenbaum Trachtenberg PLC, Phoenix, By Geoffrey Trachtenberg
Gallagher & Kennedy P.A., Phoenix, By Lincoln Combs, Counsel for Amicus Curiae Arizona Association for Justice/ Arizona Trial Lawyers Association
Humphrey & Petersen, Tucson By Andrew Petersen, Counsel for Amicus Curiae Tucson Defense Bar Inc.
¶1 Shirley Heaphy seeks special-action relief from the respondent judge's order requiring disclosure of the medical records of statutory beneficiaries in a wrongful death action against the real-parties-in-interest, Willow Canyon Healthcare Inc., Nicholas Bastiampillai, and Quince Holdings LLC (collectively, "Willow Canyon"). Because Heaphy has no remedy by appeal and the issue is a purely legal one of first impression that may arise again in the future, we accept special action jurisdiction. See Abeyta v. Soos ex rel. Cty. of Pinal , 234 Ariz. 190, ¶ 1, 319 P.3d 996 (App. 2014) ; State ex rel. Romley v. Martin , 203 Ariz. 46, ¶ 4, 49 P.3d 1142 (App. 2002) (); see also Ariz. R. P. Spec. Act. 1(a). And because Willow Canyon has identified no particular medical condition of the beneficiaries that they have placed at issue, we grant relief.
¶2 Charles Heaphy died in December 2017 while in the care of Willow Canyon. His wife, Shirley Heaphy subsequently filed a wrongful death action, grounded in medical malpractice, against the Willow Canyon defendants. The statutory beneficiaries include Heaphy and her and Charles's three adult children. Willow Canyon sought discovery of the beneficiaries’ medical records. Heaphy asserted she and the other beneficiaries had not waived the physician-patient privilege as to those records and the records were not "relevant to life expectancy." The respondent permitted discovery of some recent records, determining that, because the beneficiaries had claimed an ongoing loss of companionship by the decedent, their life expectancies were at issue in the case, and their medical records could be relevant to that issue. Thus, the respondent concluded the beneficiaries had waived the physician-patient privilege. Heaphy then filed a motion for reconsideration. The respondent denied that motion without explanation. This special action followed.
¶3 In her special-action petition, Heaphy again argues that the statutory beneficiaries have not waived the physician-patient privilege and that life-expectancy evidence is irrelevant absent a claim for future pecuniary damages. We need address only the first issue. Communications between a physician and patient, as well as medical records, are privileged in Arizona. A.R.S. §§ 12-2235, 12-2292 ; see also Tucson Med. Ctr., Inc. v. Misevch , 113 Ariz. 34, 37, 545 P.2d 958, 961 (1976). Implied waiver of the physician-patient privilege occurs in two circumstances. First, under A.R.S. § 12-2236, the privilege is waived if the privilege holder "offers himself as a witness and voluntarily testifies with reference to" privileged communications and, second, when the holder "places a particular medical condition at issue by means of a claim or affirmative defense." Bain v. Superior Court , 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986).
¶4 The second circumstance described in Bain is implicated here: implied waiver by placing "a particular medical condition at issue."1 But, placing a condition "at issue" means more than a possibility the condition could be relevant; upholding the privilege must instead "deny the inquiring party access to proof needed fairly to resist the [privileged party]’s own evidence on that very issue." Accomazzo v. Kemp , 234 Ariz. 169, ¶ 9, 319 P.3d 231 (App. 2014) (quoting State Farm Mut. Auto. Ins. Co. v. Lee , 199 Ariz. 52, ¶ 16, 13 P.3d 1169 (2000) ). "The bare assertion of a claim or defense does not necessarily place privileged communications at issue in the litigation, and the mere fact that privileged communications would be relevant to the issues before the court is of no consequence to the issue of waiver." Id. Moreover, the party seeking to overcome the privilege has the burden of showing waiver. State v. Miles , 211 Ariz. 475, n.4, 123 P.3d 669 (App. 2005).
¶5 Willow Canyon argues that, by seeking future damages, the life expectancy of the statutory beneficiaries is "at issue" and their medical records are thus relevant and any applicable privilege is waived. But, as we have noted, that privileged information may be relevant to a claim is not sufficient to overcome the privilege.2 Accomazzo , 234 Ariz. 169, ¶ 9, 319 P.3d 231. And, even if denying access to the beneficiaries’ medical records denies Willow Canyon access to evidence that counters the beneficiaries’ future damages claims, the privilege still is not waived because there is no particular medical condition at issue.3
¶6 Arizona cases discussing privilege show that merely placing one's general health at issue is insufficient to waive the medical privilege. Instead, the privilege holder must make an assertion about or present evidence about a particular condition before waiver may be implied. For example, in Throop v. F.E. Young & Co. , 94 Ariz. 146, 156-58, 382 P.2d 560, 566-68 (1963), our supreme court concluded the decedent's medical privilege regarding records of treatment for heart problems had been waived when the estate claimed the decedent's death occurred from a "sudden heart attack." Similarly, relying on Throop , the court in Bain rejected the argument that a plaintiff had "placed her psychological condition at issue" because a conversion reaction—emotional stress appearing as a physical symptom—had caused the back pain at issue in the medical malpractice claim. Bain , 148 Ariz. at 332-33, 335, 714 P.2d at 825-26, 828. The court thus limited the scope of the waiver to those records related to the conversion reaction and excluded other mental-health records. Id. at 335, 714 P.2d at 828.
¶7 This court has determined a defendant's testimony about her ingestion of alcohol did not necessarily waive the privilege as to medical records that included blood alcohol test results. Buffa v. Scott , 147 Ariz. 140, 143, 708 P.2d 1331, 1334 (App. 1985). The tipping point was instead when she elicited expert testimony about her possible blood alcohol level based on the amount of alcohol she claimed to have consumed—a level far less than that appearing in the medical records—making her testimony "contrary to the medical facts" contained in the test results. Id. at 142-44, 708 P.2d at 1333-35.
¶8 In Blazek v. Superior Court , 177 Ariz. 535, 541, 869 P.2d 509, 515 (App. 1994), this court concluded that a waiver determination could not be made without knowing "exactly what kind of mental injuries" the plaintiff had alleged. We emphasized that implied waiver of the psychologist-patient privilege "is limited only to those communications concerning the specific condition which petitioner has placed at issue." Id. at 542, 869 P.2d at 516. And, in Cabanas v. Pineda , 246 Ariz. 12, ¶¶ 18, 25, 433 P.3d 560 (App. 2018), we determined a defendant seeking sentencing relief due to his "transient immaturity" had not waived his privilege as to mental-health records. We observed that no such waiver would occur until the defendant relied on "expert testimony or other clinical reference to his mental health." Id. ¶ 25.
¶9 Willow Canyon has cited no Arizona case finding waiver in circumstances like these. The only case it cites that supports its position that alleging future damages waives a medical privilege is wholly unpersuasive.4 In McCluskey v. United States , 562 F. Supp. 515, 516 (S.D.N.Y. 1983), a federal trial court stated the beneficiaries "actual life expectancy" were relevant in a wrongful death action, and the beneficiaries had thus waived the medical privilege "by the bringing of this action, thus putting into issue the pecuniary loss suffered by the next of kin." The court cited Freeman v. Corbin Bus Co. , 60 A.D.2d 824, 401 N.Y.S.2d 224, 225 (1978), which did not address waiver of the beneficiary's privilege, instead concluding a wrongful death action waived the privilege as to the records of the decedent. Indeed, the court's statement in McCluskey appears inconsistent with New York law. See Scalone v. Phelps Mem'l Hosp. Ctr. , 184 A.D.2d 65, 591 N.Y.S.2d 419, 424 (1992) ().
¶10 Willow Canyon's position would mean that a plaintiff waives the physician-patient privilege in any case involving future damages—an expansion of...
To continue reading
Request your trial
-
Polivka v. Gard
...the real-party-in-interest, Chad Polivka. Because special action jurisdiction is appropriate to review privilege issues, Heaphy v. Metcalf, 249 Ariz. 210, ¶ (App. 2020), we accept jurisdiction. See also Ariz. R. P. Spec. Act. 1(a). Because Nikki has neither expressly nor impliedly waived th......