Mincey v. Ga. Dep't of Cmty. Affairs.

• Decision Date: 24 March 2011
• Docket Number: No. A10A2307.,A10A2307.
• Citation: 308 Ga.App. 740,708 S.E.2d 644
• Parties: MINCEYv.GEORGIA DEPARTMENT OF COMMUNITY AFFAIRS.
• Court: Georgia Court of Appeals

308 Ga.App. 740

708 S.E.2d 644

MINCEY

v.GEORGIA DEPARTMENT OF COMMUNITY AFFAIRS.

No. A10A2307.

Court of Appeals of Georgia.

March 24, 2011.

Michael A. Baskin, Atlanta, for appellant.Thurbert E. Baker, Atty. Gen., Bryon Alan Thernes, Atty. Gen., for appellee.DILLARD, Judge.

In this personal injury action, we granted appellant Carolyn L. Mincey's application for interlocutory appeal to review the trial court's order denying her motion for a protective order and directing her to execute a release of her mental-health records to appellee Georgia Department of Community Affairs (“GDCA”). The trial court denied Mincey's motion after concluding that she waived the right to assert a mental-health privilege by providing evasive and/or false responses about her medical history to GDCA during discovery. The trial court further granted GDCA a continuance and reopened discovery as a sanction for Mincey's conduct pursuant to OCGA § 9–11–37. Because we conclude that Mincey's handling of discovery, albeit troublesome, did not amount to a decisive and unequivocal waiver of her mental-health privilege as the law requires, we reverse that aspect of the trial court's order and remand this case with direction. We affirm in all other respects.

Here, the record shows that in November 2006, Mincey was injured while riding as a passenger in a vehicle that was struck by a car being driven by a GDCA employee. Mincey thereafter sued GDCA, alleging that the accident was a result of the driver's negligence and further asserting that the driver was working within the scope, authority, and employ of GDCA at the time of the accident, thus rendering GDCA liable for her injuries. During discovery, Mincey reported that she suffered, as a direct result of the accident, damages that included “pain in both knees on a daily basis,” a herniated disk in the lumbar region of her back, “inconsistent moods,” and “daily bouts of fatigue and depression.”

In written interrogatories, GDCA requested that Mincey identify “each and every physician or other practitioner of the healing arts who examined, diagnosed or treated” her during the ten years prior to the accident, and to further state “the nature and extent of any physical or mental disability, impairment, or handicap of any kind” from which she suffered at the time of the accident. After qualifying her response with an objection that the request was “overly broad and unduly burdensome,” Mincey offered the names of three doctors who previously treated her for three pre-accident conditions (i.e., the removal of a brain lesion, a blood transfusion, and a gastrointestinal procedure), but made no mention of any history of pain in her knees, back trouble, or depression. GDCA then served a third-party request for production of documents on each of the named pre-accident medical providers, in addition to the 13 medical providers that treated Mincey after the accident, and received records from each. Although Kaiser Permanente (“Kaiser”) was not identified as a pre-accident medical provider, it was included in the names of facilities that rendered Mincey care after the accident. And while Mincey executed a release of the Kaiser records, she limited the release to those records dated on or after the date of the accident.

GDCA then deposed Mincey for the first time in September 2008, and, during the course of this deposition, asked her whether she suffered pain in her knees or lower back prior to the accident. After doing so, the following colloquy transpired:

[Mincey]: Prior to the accident?

[Counsel]: Prior to the accident.

[Mincey]: No. No.

[Counsel]: Had you ever experienced any sort of swelling in your knees prior to the accident?

[Mincey]: No.

[Counsel]: Any sort of stiffness prior to the accident?

[Mincey]: No.

[Counsel]: No recurrent sort of pains that you can think of prior to the accident?

[Mincey]: Nothing that didn't—if I did, it was just nothing that was a continued thing. I guess with age, a little bit of everything ache [sic] every now and then. But nothing abnormal or on a continuous basis.

[Counsel]: Is it the same for your lower back?

[Mincey]: No. I basically have never had problems with my back.

With respect to Mincey's mental health, she maintained (during this same deposition) that her struggles with depression directly resulted from the accident:

[Counsel]: I see from ... some of the medical records that you might have a history of depression. I'm only interested in that, and you can answer this however you want. To the extent that this injury and taking pain medication and that sort of thing would, you know, worsen your mood or decrease your positive outlook—

[Mincey]: I do deal with that now continuously. I don't have a history of it.... But since the accident I've dealt with depression, anxiety....

[Counsel]: Had you ever had—lets just take any time prior to the accident—had a diagnosis of depression?

[Mincey]: No.

...

[Counsel]: Has anyone given you a diagnosis of depression after the accident?

[Mincey]: Not necessarily a diagnosis, but that is something that I deal with because of it, but I have not been given a diagnosis of depression.

[Counsel]: I understand. And prior to this accident, ... no one had ever told you that you had any sort of degenerative changes in your lower back or in your knees?

[Mincey]: No.

Despite Mincey's responses to questions about her medical history, certain medical records produced by Kaiser indicated that she may have indeed complained of similar ailments prior to the accident. For example, one computer-generated record contained a “Problem List” that included “arthralgia [pain] of knee” as an unresolved issue that was “noted” in January 2006, more than ten months prior to the accident. Moreover, that same medical record made references (from which one could infer) that the onset of Mincey's mood instability and/or depression may have pre-dated the accident, including reports that her “[m]ood ha[d] been worsening over the past two years [prior to the accident],” as well as containing notes attributing “much sadness” to a “decline of health over the past 7 years.”

The discovery period ended in October 2008. In August 2009, GDCA sent a letter to Mincey's counsel requesting that Mincey sign a release authorizing the production of her complete medical records, including medical care pre-dating the accident as well as her mental-health records.¹ GDCA nonetheless announced at the calendar call in September 2009 that it was ready to proceed to trial, although it then sent a second letter to Mincey acknowledging her refusal to sign the release by invoking the mental-health privilege, and conditioning its “ready” announcement upon the production of the records sought. GDCA further asserted in the correspondence that “at an absolute minimum, [GDCA] has the right to Mincey's medical records as they relate to her pre-existing problems with knee pain.”

Mincey repeatedly asserted to both GDCA and the trial court that all of her nonprivileged medical records, including those from Kaiser, had been produced, and denied that she had withheld relevant or requested information during the discovery period. Nevertheless, in October 2009, GDCA filed a motion to compel the discovery of any medical records not already produced by Mincey, including those that would otherwise be protected by the mental-health privilege. In response, Mincey continued to assert that all nonprivileged medical records had been produced. She also maintained that GDCA was not entitled, in any event, to pursue further discovery because the discovery period had already ended.

GDCA thereafter subpoenaed the deposition of Kasier's custodian of records and ordered the custodian to produce all of Mincey's nonprivileged medical records. In response, Mincey filed a motion for protective order on the basis that the documents sought were included in the pending motion to compel and that discovery had expired.

The trial court denied Mincey's motion for a protective order and GDCA obtained the additional Kaiser records that it sought. The records from a May 2006 visit—six months prior to the accident—revealed that Mincey had previously received diagnoses of “osteoarthritis of [the] knee” and “strain of [the] lumbar region” of her back. On the day of that particular visit, Mincey had “pain, swelling and crunching of the affected joints, especially the left knee.” Suggesting that the problems were not new, the record referenced Mincey's prior treatment, noting that her “symptoms have been improved by analgesics and intraarticular steroid injections” but “ha[d] not been improved by footwear and physical therapy.” During this same visit, Mincey complained of “low[er] back pain,” including “radicular symptoms involving both lower extremities[,]” and advised that she had a “[h]istory of intermittent back discomfort[.]”

The records further reflected the summary of an October 2009 telephone call from Mincey to her Kaiser doctor, placed on the same day that the parties held a teleconference with the trial judge regarding GDCA's attempt to obtain the additional medical records. The notes indicate that Mincey called to inquire about the January 2006 “arthralgia of the knee” reference that had prompted GDCA's request for additional records. Her doctor's response to the reporting nurse read:

Notify patient that this diagnosis was entered by [another doctor] and [Mincey] was prescribed an analgesic (generic DARVOCET N–100MG). The diagnosis indicates she had pain in the knee joint but not specifically from arthritis. The diagnosis cannot be changed or deleted by me. Schedule a followup visit with me for any persistent knee symptoms.

Finally, the newly obtained Kaiser records reflected that Mincey had been diagnosed with depression in July 2006, four months prior to the accident at issue.²

After conducting a hearing, the trial court issued an order on March 17, 2010, finding that Mincey's “deposition...