Karpowicz v. Hyles

• Decision Date: 28 November 2000
• Docket Number: No. A00A1731.,A00A1731.
• Citation: 247 Ga. App. 292,543 S.E.2d 51
• Court: Georgia Court of Appeals
• Parties: KARPOWICZ et al. v. HYLES.

543 S.E.2d 51

247 Ga. App. 292

KARPOWICZ et al. v. HYLES.

No. A00A1731.

Court of Appeals of Georgia.

November 28, 2000.

Reconsideration Denied December 13, 2000.

Certiorari Denied June 5, 2001.

Beltran & Associates, Frank J. Beltran, Douglas V. Chandler, Atlanta, Bernadette C. Crucilla, Macon, for appellants.

Hawkins & Parnell, Howell Hollis III, Christine L. Mast, H. Lane Young II, Atlanta, for appellee.

Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, Atlanta, James C. Bonner, Jr., Decatur, amici curiae.

SMITH, Presiding Judge.

Riann Karpowicz and her mother, Ruth Karpowicz, filed this tort action against Stephen Hyles, an attorney who had acted as defense counsel for another individual in a criminal case. Hyles obtained and reviewed the psychiatric records of Riann Karpowicz and then, during the criminal trial, used certain facts obtained from the records to attack the credibility of Ruth Karpowicz. Later, in this action, the trial court granted summary judgment to Hyles on all counts of the Karpowiczes' complaint and denied partial summary judgment to the Karpowiczes. The Karpowiczes appeal. We agree with the trial court that summary judgment was warranted in Hyles's favor. We therefore affirm.

Steven Carson was tried before a jury on charges of false imprisonment and rape of Riann Karpowicz. In preparation for trial, Carson's attorney, Hyles, had a subpoena duces tecum served on the records custodian at Northridge Hospital, a psychiatric treatment facility at which Riann Karpowicz had received treatment in 1994. In response to the subpoena, the custodian contacted Hyles's office and informed him that he could retrieve the documents. After one of Hyles's office employees paid for and picked up the records, Hyles reviewed the custodial certificates, and he testified by affidavit that he "briefly reviewed the documents to determine what they contained and which portions, if any, would be relevant evidence in the Carson trial." He also testified Carson never reviewed the records, although he did discuss with Carson the fact that Karpowicz had been treated at Northridge and the dates this treatment had occurred.

Before trial began, the trial court ruled that nothing in the records could be used at trial to "prove the truth of any diagnosis or statement of the condition of Riann Star Karpowicz contained in the records, and that no privileged information contained in the records could be referred to in opening statements, jury arguments, and in the examination of witnesses." The trial court did, however, allow the facts and dates of treatment to be used as evidence.

During his opening statement, Hyles mentioned that Karpowicz and Carson "began a friendship shortly after she was released from the Northridge Hospital." Later, on cross-examination, Ruth Karpowicz testified she would believe Riann Karpowicz under oath. Hyles then showed Ms. Karpowicz a document signed by her admitting Riann to Northridge, and upon questioning by Hyles, Ms. Karpowicz acknowledged she had Riann admitted to that facility due to Riann's "excessive lies." While the prosecutor objected to admissibility of this document on grounds of relevancy, he did not object on privilege grounds. The document was admitted, with redaction to keep out certain handwritten notes and other information. Also on cross-examination, Ruth Karpowicz acknowledged that she told a licensed clinical psychologist who treated Riann at Northridge that she was afraid it "was a possibility" that Riann was unable "to distinguish fact from reality." Carson was acquitted after less than an hour of jury deliberations.

Riann and Ruth Karpowicz then filed this action against Hyles, seeking an order for return of Riann's records and damages for negligence, abuse of judicial process through abuse and unlawful use of a subpoena, fraud and deceit, invasion of privacy, tortious interference with a confidential relationship, and negligent and intentional infliction of emotional distress. Following motions filed by the parties, the trial court granted summary judgment to Hyles and denied the Karpowiczes' motion for partial summary judgment. This appeal by the Karpowiczes followed.

1. The Karpowiczes first argue that the trial court erroneously ruled "that a criminal defendant's right to confront a witness overrides the privilege of confidential communications of [that witness's] psychiatric records." But the trial court's ruling was not so broad. The trial court stated as follows:

The criminal defense attorney's obligation in a criminal trial is to his client as opposed to third persons, including the complaining witness, and this duty includes the protection of the client's constitutional right to confront complaining witnesses. Ga. Const. Art. 1, § 1 ¶ 14. Where credibility of a witness in a criminal trial is in issue, the criminal defendant must be given broad latitude to explore, and impeach, that witness'[s] credibility.

This was not a generalized ruling that a criminal defendant's right to confront an opposing witness always overrides the use of privileged psychiatric records. Indeed, the psychiatric privilege can yield to the right of confrontation upon a showing that privileged material is necessary to an accused's defense. See Bobo v. State, 256 Ga. 357, 359(3), 349 S.E.2d 690 (1986).

Here, the trial court conducted a pre-trial hearing and ruled that Hyles could not introduce any privileged matters. And Hyles complied with this ruling. Although Hyles mentioned that Riann Karpowicz had received treatment at Northridge, the fact of this treatment correctly had been ruled admissible at trial. See, e.g., Johnson v. State, 254 Ga. 591, 597(7), 331 S.E.2d 578 (1985). Furthermore, Hyles's cross-examination of Ruth Karpowicz was not an improper use of privileged records. Ruth Karpowicz herself was not a patient when she made the statement on Riann's admission slip concerning Riann's "excessive lying" or when she stated to one of Riann's treating psychologists that Riann had difficulty differentiating between fact and fantasy. No confidential relationship existed permitting Ruth Karpowicz to claim the psychiatrist-patient communications privilege. See generally Fulbright v. State, 194 Ga.App. 827(1), 392 S.E.2d 298 (1990) (to invoke privilege, psychiatrist-patient relationship must exist to the "`extent that treatment was given or contemplated.' [Cits.]") This case is distinguished from Mrozinski v. Pogue, 205 Ga.App. 731, 423 S.E.2d 405 (1992), in which this court concluded that an issue of fact existed as to whether the plaintiff, the father of a 14-year-old who received psychiatric treatment from defendant, also received psychiatric assistance from the defendant. Id. at 733, 423 S.E.2d 405. In Mrozinski, evidence was presented that the plaintiff "participated in therapy," id., and that he "consulted [the defendant] for treatment and assistance for himself in his family relations, particularly with his daughter." Id. at 732, 423 S.E.2d 405. But the record here does not show that Ruth Karpowicz sought treatment from the treating psychologist at Northridge to whom she made the statement concerning Riann's inability to distinguish fact from fantasy.

2. We next address the Karpowiczes' argument that the trial court erred in granting summary judgment to Hyles on Riann Karpowicz's invasion of privacy claim. The right of privacy has indeed been recognized in this State "as a fundamental constitutional right, having a value so essential to individual liberty in our society that its infringement merits careful scrutiny by the courts." (Citation and punctuation omitted.) Powell v. State, 270 Ga. 327, 329(3), 510 S.E.2d 18 (1998). The privacy afforded to medical records was recently extensively discussed in King v. State, 272 Ga. 788, 535 S.E.2d 492 (2000). In King, the Supreme Court of Georgia concluded that the defendant had a reasonable expectation of privacy in her medical records and that those records could not be disclosed without her consent unless their production was otherwise required by the laws of this State. The Court found that in the absence of waiver and without notice to the accused, the State could not obtain a defendant's medical records by use of a subpoena under OCGA § 24-9-40. This right of privacy certainly extends to privileged psychiatric records. As stated in Bobo, supra, a criminal defendant is not entitled to embark upon "a `fishing expedition' regarding a witness'[s] consultations with a psychiatrist." Bobo, supra, 256 Ga. at 360,349 S.E.2d 690.

But after giving Riann Karpowicz's invasion of privacy claim appropriate "careful scrutiny," we cannot conclude that Hyles's actions were improper or that he in any manner engaged in a "fishing expedition" prohibited by cases such as Bobo. Nor does King, supra, require reversal. We first note that the Supreme Court's discussion in King addresses whether the State was authorized under OCGA § 24-9-40 to obtain a patient's medical records and then use those records to prosecute that patient. But that Code section expressly does not apply to psychiatrists or hospitals in which the patient is receiving treatment or has been "treated solely for mental illness." OCGA § 24-9-40(a). Furthermore, the State's conduct is not at issue here. Instead, the more narrow issue is whether a criminal defense attorney wrongfully presumed that a psychiatric hospital complied with the law in providing a patient's psychiatric records. We agree with the trial court that Hyles was entitled to rely on just such a presumption that the records he received from Northridge were either nonprivileged or that Northridge first obtained a waiver from Riann Karpowicz.

Under OCGA § 37-3-166(a)(8), a hospital is authorized to release a copy of a psychiatric patient's record, except for privileged matters, pursuant to a valid subpoena or court order. The act of having the subpoena issued was not...