Mitchell v. Eighth Judicial Dist. Court of State

• Citation: 359 P.3d 1096,131 Nev. Adv. Op. 21
• Decision Date: 30 April 2015
• Docket Number: No. 63076.,63076.
• Parties: Ryan MITCHELL, D.O., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable Kenneth C. Cory, District Judge, Respondents, and Alec Bunting, by and through his Guardian Ad Litem, Stella Ravella; and Stella Ravella, Individually, Real Parties in Interest.
• Court: Supreme Court of Nevada

359 P.3d 1096

131 Nev. Adv. Op. 21

Ryan MITCHELL, D.O., Petitioner

v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable Kenneth C. Cory, District Judge, RespondentsandAlec Bunting, by and through his Guardian Ad Litem, Stella Ravella; and Stella Ravella, Individually, Real Parties in Interest.

No. 63076.

Supreme Court of Nevada.

April 30, 2015.

Rehearing Denied July 23, 2015.

Mandelbaum, Ellerton & McBride and Sarah Marie Ellerton, Kim Irene Mandelbaum, and Robert C. McBride, Las Vegas, for Petitioner.

The Law Office of Daniel S. Simon and Daniel S. Simon, Las Vegas, for Real Parties in Interest.

Before the Court En Banc.

OPINION

By the Court, PICKERING, J.:

This is a medical malpractice case in which the doctor defendant, petitioner Ryan Mitchell, seeks an extraordinary writ directing the district court to protect as privileged counseling and medical records relating to his substance abuse. We conditionally grant the writ. Mitchell's family and marital therapy

records are privileged, and his doctor-patient records, though subject to the patient-litigant exception in NRS 49.245(3), should have been reviewed in camera by the district court and appropriate limitations placed on their use before discovery of all or any part of them was allowed.

I.

Alec Bunting experienced heart problems following a tonsillectomy

performed by Dr. Mitchell. Bunting's guardian ad litem, Stella Ravella, sued Mitchell and Mitchell's employer for medical malpractice and negligent hiring and supervision, respectively. Ravella's complaint alleges that Mitchell's misadministration of anesthesia during the surgery caused then-seven-year-old Bunting's heart to fail. Bunting survived, but his heart now beats with the help of a pacemaker.

In deposition, Mitchell admitted that at the time he operated on Bunting he was addicted to Ketamine

and Valium, which he had abused intermittently for years. Mitchell denies operating on Bunting—or any patient—while under the influence of drugs or alcohol. But, three months after Bunting's tonsillectomy, Mitchell was arrested for domestic violence while high on drugs, and three months after that, Mitchell was arrested for driving under the influence. Mitchell was convicted of both offenses. He disclosed in deposition that, after his arrests, he and his wife pursued marriage counseling and that he was treated for substance abuse by two different doctors, first on an outpatient, then on an inpatient basis.

Ravella posits that Mitchell was impaired when he operated on Bunting and that Mitchell's employer should have recognized his addictive behavior and prevented him from treating patients. Seeking support for her position, Ravella subpoenaed Mitchell's counseling and substance abuse treatment records. Mitchell objected, citing the doctor-patient and family therapist-client privileges. The district court overruled Mitchell's privilege claims. It held that Ravella's claims and Mitchell's and his employer's defenses to them placed Mitchell's drug addiction in issue in the litigation, thereby terminating the privileges that originally attached to his communications with his doctors and with his and his wife's family therapist.¹

II.

The law reserves extraordinary writ relief for situations “where there is not a plain, speedy and adequate remedy in the ordinary course of law.” NRS 34.170 (mandamus); NRS 34.330 (prohibition). Because most discovery rulings can be adequately reviewed on appeal from the eventual final judgment, extraordinary writs “[g]enerally ... are not available to review discovery orders.” Clark Cnty. Liquor & Gaming Licensing Bd. v. Clark, 102 Nev. 654, 659, 730 P.2d 443, 447 (1986). But when a discovery order directs disclosure of privileged information, a later appeal may not be an effective remedy. Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 350–51, 891 P.2d 1180, 1183–84 (1995) (“If improper discovery were allowed, the assertedly privileged information would irretrievably lose its confidential and privileged quality and petitioners would have no effective remedy, even by a later appeal.”); see Hetter v. Eighth Judicial Dist. Court, 110 Nev. 513, 515, 874 P.2d 762, 763 (1994). Thus, we have occasionally granted extraordinary writ relief from orders allowing pretrial discovery of privileged information, especially when the petition presents an unsettled and important issue of statutory privilege law. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 93, 993 P.2d 50, 54 (2000) ; Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993).

Our cases do not address whether and, if so, how the at-issue waiver doctrine and/or the patient-litigant exception to the doctor-patient and family therapist-client privileges apply when it is the defendant who claims the privilege and the plaintiff who has put the defendant's physical or mental condition in issue. And, without writ relief, compelled disclosure of Mitchell's assertedly privileged communications will occur before a final appealable judgment is reached.² Together, these considerations persuade us that our intervention by way of extraordinary writ is appropriate in this matter.

III.

NRS 49.225 and NRS 49.247 protect as privileged confidential communications between a patient and his doctor and between clients and their marriage and family therapist. These privileges initially attached to Mitchell's doctor-patient and marriage and family therapist-client communications. The question we face is whether these confidential communications lost their privileged status when Mitchell's drug addiction became relevant to Ravella's malpractice and negligent hiring and supervision claims. This is a legal question that we decide de novo, without deference to the district court. See Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, ––– Nev. ––––, 331 P.3d 905, 909–10 (2014). Since the analysis differs for the two privileges, we discuss them separately, taking the doctor-patient privilege first.

A.

A patient who voluntarily puts his physical or mental condition in issue in a lawsuit loses the protection of the doctor-patient privilege for communications with his doctor about that condition. 1 Kenneth S. Broun et al., McCormick on Evidence § 103, at 631 (7th ed.2013). Variously referred to as waiver by placing in issue or the in-issue or at-issue waiver doctrine, this judicially developed rule promotes fairness, see 8 John Henry Wigmore, Evidence § 2388, at 855 (McNaugton rev. 1961), and discourages abuse of the privilege; it “prevents the patient from putting his physical or mental condition in issue and then asserting the privilege to prevent an adversary from obtaining evidence that might rebut the patient's claim.”25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5543, at 320 (1989). Today, many states, including Nevada, have amended their doctor-patient privilege statutes to create an express patient-litigant exception that, depending on the form of the exception statute, directs the same or a similar result as the at-issue waiver doctrine. See NRS 49.245(3) ; Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges § 6.13.3 (2d ed.2014).

1.

Citing out-of-state case law, e.g., Chung v. Legacy Corp., 548 N.W.2d 147 (Iowa 1996) ; Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986), Mitchell insists that neither the at-issue waiver doctrine nor the patient-litigant exception properly applies unless the patient is the one who puts his physical or mental condition in issue. And, indeed, this is the law stated in Chung, Shamburger, and other like cases. See also NRS 49.385 (providing that a privilege is waived if the holder “voluntarily discloses or consents to disclosure of any significant part of the [privileged] matter”). If the holder of the privilege denies a litigation adversary's allegations about his physical or mental condition, he has not voluntarily put his condition in issue. Since waiver requires an affirmative, voluntary act by the holder of the claim or right to be waived, see Mill–Spex, Inc. v. Pyramid Precast Corp., 101 Nev. 820, 822, 710 P.2d 1387, 1388 (1985) (“[W]aiver is the intentional relinquishment of a known right.”), such forced denials normally do not waive the privilege. See Broun, supra, § 103, at 633 (“With respect to defenses, a distinction is clearly to be seen between the allegation of a physical or mental condition, which will effect the waiver [of the doctor-patient privilege], and the mere denial of such a condition asserted by the adversary, which will not.”); see also Leavitt v. Siems, ––– Nev. ––––, 330 P.3d 1, 7 (2014) (“Bringing a claim for personal injury or medical malpractice results in a limited waiver of the physician-patient privilege with regard to directly relevant and essential information necessary to resolve the case.”).

Mitchell did not place his drug addiction in issue in the underlying malpractice suit; Ravella did. Analyzed purely as a matter of waiver, Mitchell's doctor-patient privilege thus remains intact and is not affected by Ravella's malpractice and negligent supervision claims. But our analysis does not end with the at-issue waiver doctrine. We still must consider Nevada's statutory patient-litigant exception.³

2.

NRS 49.245(3) states the patient-litigant exception to Nevada's doctor-patient privilege as follows:

There is no privilege under NRS 49.225... [a]s to [communications] ^[ [^{4 ]} relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.

A plain reading of the statute's text does not support a requirement that the patient must place his condition in issue for the exception to terminate the privilege. Rather, the statute seems to say that, all other conditions being met—i.e., there is: a confidential communication; that is relevant; to an issue of the patient's condition; in a proceeding; in which the...