Marriage of Hutchinson, In re

• Decision Date: 21 January 1999
• Docket Number: No. 97-1075,97-1075
• Citation: 588 N.W.2d 442
• Parties: In re the MARRIAGE OF Sela HUTCHINSON and Roy M. Hutchinson. Upon the Petition of Sela Hutchinson, Appellee, And Concerning Roy M. Hutchinson, Appellant.
• Court: Iowa Supreme Court

Page 442

588 N.W.2d 442

In re the MARRIAGE OF Sela HUTCHINSON and Roy M. Hutchinson.

Upon the Petition of

Sela Hutchinson, Appellee,

And Concerning

Roy M. Hutchinson, Appellant.

No. 97-1075.

Supreme Court of Iowa.

Jan. 21, 1999.

James R. Van Dyke of Van Dyke & Werden, P.C., Carroll, and Pete Leehey of Leehey & Valentine, Fort Dodge, for appellant.

Sharon R. Stevens and Susan Ekstrom, Des Moines, for appellee.

Considered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and CADY, JJ.

LAVORATO, Justice.

This appeal stems from a minor's suit for loss of parental consortium arising out of the alleged negligent medical treatment of the minor's parent. The issue is whether the suit waives that parent's statutory physician-patient privilege against disclosure of her medical records even though she is not a party to the suit and refuses to waive her privilege. We agree with the district court that the suit does not waive the privilege, and we affirm.

I. Facts and Proceedings.

In February 1995, the district court dissolved the marriage of Roy and Sela Hutchinson. The court granted primary physical care of their son, Jacob, to Roy.

The dispute regarding Sela's medical and mental health records, however, dates back to March 1994 when the dissolution proceedings were pending. The district court first ordered the production of Sela's records on March 17, 1994. The order provided that the records "be held in confidence by and be accessible only to the parties, their attorneys and the Court." The court entered the order pursuant to Roy's motion to produce in which he alleged that Sela's "condition, mentally and emotionally, will be an issue in this case and thus under Iowa Code section 622.10, these records are vital to the determination of the best interests of [Jacob]."

On April 1 the parties filed a stipulation in which they agreed that Roy would have temporary physical custody of Jacob subject to Sela's visitation rights. The stipulation further provided that the production of Sela's medical and mental health records would be postponed. The court filed an order approving the stipulation on the same day.

On September 22 Sela filed an application for modification of the order approving the stipulation, seeking to expand her visitation rights. This filing prompted Roy to file a "renewed motion for order producing medical and mental health records." The court filed an order granting the motion on September 27. The court again ordered that such records "will be held in confidence by and be accessible only to the parties, their attorneys and the Court."

On October 24 the court granted Roy's motion for an order directing that Sela's health care professionals give testimony regarding their treatment of her. The court denied Sela's motion to reconsider. Following this skirmish, the parties entered into a partial stipulation, filed January 25, 1995, in which they agreed Roy would have physical custody of Jacob, subject to Sela's visitation rights. The court approved the stipulation.

The case proceeded to trial with the principal issues being division of personal property, property valuations, assignment of debt, alimony for Sela, attorney fees for Sela, and a pick-up time issue on visitation. The court entered its decree of dissolution on February 6, 1995.

On December 26, 1995--less than a year later--Sela filed a petition to modify the dissolution decree to expand her visitation rights. Roy also filed a petition to modify the dissolution decree seeking to revise the visitation schedule.

At this point, Sela's medical and mental health records again became an issue when Roy's sought production of Sela's additional hospital and mental health records. In his motion, Roy again asserted that Sela's condition, "physically, mentally, and emotionally, would be an issue in the case and thus under Iowa Code section 622.10, these records are vital to the determination of the best interests of [Jacob]." District Judge Allan L. Goode ordered Sela to produce the records but ordered Roy and his attorney not to disclose them to third parties.

On July 5, 1996, District Judge Kurt L. Wilke modified the decree, requiring that a third party supervise Sela's visitation with Jacob. The court ordered Roy not to disseminate Sela's medical and mental health records in his possession to "parties other than his attorneys absent further Court order." Additionally, the court "maintained jurisdiction of this case so that at such time as [Sela's] treating physicians and counselors indicate supervision is no longer necessary, this issue may be reviewed."

About one week later, Roy moved for an order modifying the September 27, 1994 protective order filed in the dissolution proceedings. According to his application, Roy had filed two civil suits--one in Webster County and one in Polk County--seeking money damages from some of Sela's medical health providers. Roy filed the suits on behalf of his minor child, Jacob, and alleged the providers negligently treated Sela. The claim was for loss of parental consortium. Roy alleged Sela's medical records were vital to the suit and asked the court "to permit access and review of [Sela's] medical records by attorneys, experts, insurance carriers and claims representatives, and eventually the jury and court attendant in the civil litigation ... brought on Jacob's behalf in Polk County and Webster County."

On August 28, over Sela's resistance, Judge Wilke ordered Sela's records be disclosed "to the following parties in the civil suits brought by [Roy] on behalf of [Jacob]: defendants' attorneys, plaintiff's attorneys, plaintiff's experts, and defendants' experts." About six months later, Roy moved to expand Judge Wilke's order, seeking permission to use Sela's medical records in depositions of Sela, her therapists, and nontreating experts. Sela resisted. Following a hearing, Judge Wilke denied Roy's motion to expand the protective order on April 28, 1997.

Roy moved to amend, modify, or enlarge the April 28, 1997 ruling. Judge Wilke obliged by stating in his order of May 9, 1997:

Previously, this Court ordered that [Sela] cannot be compelled to testify regarding her mental health treatment which is privileged information. Respondent now seeks an enlargement of that Order specifically asking that the Court address the issue as to whether [Sela's] mental health therapists may be compelled to testify in a pending civil action regarding her care, treatment, diagnosis, prognosis, and all contacts or communications they have had with [Sela] in the course of their mental health treatment. In addition, [Roy] desires to use [Sela's] mental health records in the course of their depositions of nontreating experts and other individuals.

This Court will enlarge the previous Order by providing that [Roy] may not depose [Sela's] mental health therapists or use her mental health records in the course of depositions of nontreating experts absent [Sela's] waiver of privilege or a showing that she is incapable of granting such a waiver. Contrary to [Roy's] assertion, this Court believes that this Order is in compliance with the plain language of Iowa Code section 622.10.

In his appeal, Roy asserts, as he did in the district court, that Iowa Code section 622.10 allows for use of the records in Jacob's civil suit. He claims Jacob's civil suit is "through or under" Sela pursuant to the language in the statute.

This case turns on our interpretation of Iowa Code section 622.10 (1997). Because interpretation of a statute is a question of law, our review is for correction of errors at law. State v. Stanford, 474 N.W.2d 573, 574 (Iowa 1991).

II. Iowa Code Section 622.10.

A. The law generally. Iowa Code section 622.10 provides in relevant part:

A ... counselor, physician, surgeon ... mental health professional, or the stenographer or confidential clerk of any such person, who obtains information by reason of the persons employment, ... shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person's professional capacity, and necessary and proper to enable the person to discharge the functions of the person's office according to the usual course of practice or discipline. The prohibition does not apply to cases where the person in whose favor the prohibition is made waives the rights conferred; nor does the prohibition apply to physicians or surgeons, physician's assistants, mental health professionals, or to the stenographer or confidential clerk of any physicians or surgeons, physician's assistants, or mental health professionals, in a civil action in which the condition of the person in whose favor the prohibition is made is an element or factor of the claim or defense of the person or of any party claiming through or under the person. The evidence is admissible upon trial of the action only as it relates to the condition alleged.

Id. (emphasis added).

The physician-patient privilege in section 622.10 has a unique and limited purpose. Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984). Because the section 622.10 privilege is in derogation of every person's duty to give evidence, it is subject to special restrictions. Id. Thus, the privilege, in the plain language of the statute, applies only to testimonial use of confidential information. Iowa Code § 622.10 ("in giving testimony"); Roosevelt Hotel Ltd. v. Sweeney, 394 N.W.2d 353, 355 (Iowa 1986). But see Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996) ("The statutory rule of testimonial exclusion [in section 622.10] has been extended by [Iowa Rule of Civil Procedure 122(a) ] to the discovery of confidential communications.").

Testimony includes declarations of a witness under oath. Sweeney, 394 N.W.2d at 355. For this reason, the section 622.10 privilege includes declarations by a witness in court or in a deposition. Id. On the other hand, the privilege does not prohibit a physician in a...