Maynard v. Heeren

• Decision Date: 27 March 1997
• Docket Number: No. 19697,19697
• Citation: 563 N.W.2d 830,1997 SD 60
• Parties: David MAYNARD, Cathy Maynard, and Jon Maynard, son of David and Cathy Maynard, Petitioners and Appellants, v. Raymond HEEREN, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 830

563 N.W.2d 830

1997 SD 60

David MAYNARD, Cathy Maynard, and Jon Maynard, son of David and Cathy Maynard, Petitioners and Appellants, v. Raymond HEEREN, Defendant and Appellee.

No. 19697.

Supreme Court of South Dakota.

Considered on Briefs March 27, 1997.

Decided May 28, 1997.

Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry and Michael J. Butler of Butler and Nesson, Sioux Falls, for petitioners and appellants.

Daryl L. Hecht and Steven R. Jensen of Crary, Huff, Inkster, Hecht & Sheehan, North Sioux City, for defendant and appellee.

GILBERTSON, Justice.

¶1 David, Cathy and Jon Maynard (Maynards) filed an intermediate appeal from the circuit court's discovery order requiring them to provide Raymond Heeren (Heeren) with all psychotherapy records of Cathy Maynard. ¹ We affirm with instruction.

FACTS AND PROCEDURAL HISTORY

¶2 David and Cathy Maynard are the parents of an autistic son, Jon. Heeren allegedly is the leader of a taxpayer group opposed to the expense generated by the Greater Hoyt School District's special education placement of Jon. The Maynards claim that Heeren made false statements about them to Union County taxpayers through solicited telephone calls, newspaper advertisements and media interviews. The Maynards are suing Heeren for negligent misrepresentation, invasion of privacy, slander, and intentional infliction of emotional distress.

¶3 Through the discovery process, Heeren discovered that Cathy Maynard was seeing a psychotherapist, Dr. Douglas Anderson. Pursuant to the rules of discovery, Heeren moved for production of:

All progress notes, therapists' notes, reports, correspondence, personality inventory answer sheets, statements for services rendered, files and all other documents and tangible things generated or reviewed by ... [Dr.] Anderson ... in the course of evaluation and treatment of Cathy Maynard.

¶4 When the Maynards failed to provide the requested documents and answers to interrogatories, Heeren filed a motion to compel discovery. Maynards agreed to provide some treatment records, but provided evidence that it was Dr. Anderson's opinion that disclosure of all treatment records and the intensely personal information Mrs. Maynard divulged to him would be detrimental to her treatment. Following a hearing on Heeren's motion to compel, the trial court ordered Mrs. Maynard to turn over the requested information or face dismissal of the Maynards' claims for emotional or mental injury and damage. The Maynards petitioned for an intermediate appeal, which was granted by this Court.

STANDARD OF REVIEW

¶5 We review the trial court's rulings on discovery matters under an abuse of discretion standard. Weisbeck v. Hess, 524 N.W.2d 363, 364 (S.D.1994) (citing Aberle v. Ringhausen, 494 N.W.2d 179, 182-83 (S.D.1992)). When we are asked to determine whether the trial court's order violated the psychologist-patient confidentiality privilege, however, it raises a question of statutory interpretation requiring de novo review. Weisbeck, 524 N.W.2d at 364-65; see also Delzer v. Penn, 534 N.W.2d 58, 61 (S.D.1995) (statute construction is question of law fully reviewable).

LEGAL ISSUE AND ANALYSIS

6.] Whether SDCL 19-13-6 (the physician-patient privilege) prevents the trial court from ordering disclosure of psychological records of a patient whose mental or emotional harm is an element of her claim.

¶7 At common law, there was no physician-patient privilege, and therefore no psychotherapist-patient privilege. Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5543 (1989). The proposal for a physician-patient privilege, known as Proposed Rule 504, was not adopted into the Federal Rules of Evidence. Id. The Military Rules of Evidence recognize no physician-patient privilege. Id. Nevertheless, virtually all 50 states and the District of Columbia have enacted a psychotherapist privilege into law in some form. Jaffee v. Redmond, --- U.S. ----, ---- n. 11, 116 S.Ct. 1923, 1929 n. 11, 135 L.Ed.2d 337, 346 (1996) (listing statute citations). ²

¶8 Every privilege limits the evidence available in the judicial fact-finding process. State v. Jaques, 256 N.W.2d 559, 564 (S.D.1977) (Zastrow, J., concurring specially). This disadvantage is balanced against the public policy argument in favor of the privilege:

The physician-patient privilege expresses a long-standing policy to encourage uninhibited communication between a physician and his patient. It is a privilege that seeks to insure the free flow of health care, absent any fears on the patient's part that anything he says might later be used against him.

People ex rel. D.K., 245 N.W.2d 644, 648 (S.D.1976) (internal citation omitted).

¶9 The psychotherapist privilege in South Dakota is encompassed within the physician-patient privilege contained in SDCL 19-13-7: "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his ... mental or emotional condition[.]" A communication is confidential:

if not intended to be disclosed to third persons, except persons present to further the interest of patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.

SDCL 19-13-6.

¶10 It is generally recognized that the psychotherapy privilege can be waived by the patient. Jaffee, --- U.S. at ----, n. 14, 116 S.Ct. at 1931, n. 14, 135 L.Ed.2d at 348, n. 14. We have provided court rules for waiver of the physician-patient privilege in South Dakota, including SDCL 19-13-11, cited by both parties as applicable to the case at bar. SDCL 19-13-11 provides:

There is no privilege under § 19-13-7 as to a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

SDCL 19-13-11 speaks only to proceedings where the mental or emotional condition is an element. Mental and emotional harm is an element of two of the causes of action in the Maynards' complaint--invasion of privacy ³ and intentional infliction of emotional distress. ⁴

¶11 There exists a second statutory waiver of the physician-patient privilege which we conclude also applies in the instant case. ⁵ SDCL 19-2-3 provides, in part:

In any action or proceeding or quasi-judicial administrative proceeding, whenever the physical or mental health of any person is in issue, any privilege under § 19-13-7 shall conclusively be deemed to be waived at trial or for the purposes of discovery under chapter 15-6 if such action or proceeding is civil in nature[.]

Even if the emotional and mental state of Mrs. Maynard is not an element of the Maynards' claims for their other two causes of action, i.e., slander and negligent misrepresentation, the alleged mental harm must be used to prove up the element of injury required in both. ⁶ The Maynards in their claim for damages request compensatory damages of $250,000 plus medical bills and punitive damages for slander and intentional infliction of emotional distress. Certainly the alleged emotional suffering of Mrs. Maynard is evidence in their proof of damages, especially in the consideration of punitive damages. Because SDCL 19-13-11 and 19-2-3 apply, we address both statutes in responding to the issue raised by the Maynards.

¶12 The patient-litigant exceptions of SDCL 19-13-11 and 19-2-3 are grounded in the theory that when a patient makes a claim or defense in litigation on the basis of the patient's condition, it would be unjust to deny the other party an opportunity to show the invalidity of that claim or defense. Wright & Graham, § 5543. An additional justification for the exception has been explained as follows:

[O]ne may be suspicious that the [physician-patient] privilege is being corrupted as an instrument for the suppression of truth when the patient invokes it to close the mouth of the one person in the best position to support his claims if they were true.

Id. The general rule is that unless there is a privilege, all relevant evidence is discoverable. SDCL 15-6-26; Kaarup v. St. Paul Fire & Marine Ins., 436 N.W.2d 17, 20 (S.D.1989).

¶13 When a statute's language is clear, certain and unambiguous, our interpretation is confined to declaring its meaning as plainly expressed. In re Certification of a Question of Law (Wiersma), 1996 SD 16, p 6, 543 N.W.2d 787, 790. Since we construe statutes according to their intent, the intent must be determined from the statute as a whole, as well as other statutes relating to the same subject. U.S. West Communications, Inc. v. Public Utils. Comm'n, 505 N.W.2d 115, 123 (S.D.1993). SDCL 19-13-11 and 19-2-3 clearly relate to the same subject--waiver of physician-patient privilege by a patient-litigant. The plain language of both SDCL 19-13-11 and 19-2-3 is clear, certain and unequivocal, and those statutes when read together show the waiver of privilege was intended to be absolute as to discovery of relevant evidence.

There is no privilege under § 19-13-7 as to a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

SDCL 19-13-11 (emphasis added).

In any action or proceeding or quasi-judicial administrative proceeding, whenever the physical or mental health of any person is in issue, any privilege under § 19-13-7 shall conclusively...