Watters v. Dinn, 32A01-9301-CV-13

Citation633 N.E.2d 280
Decision Date27 April 1994
Docket NumberNo. 32A01-9301-CV-13,32A01-9301-CV-13
PartiesWilliam D. WATTERS and Vicki Watters, Appellants-Plaintiffs, v. David M. DINN and St. Francis Hospital Center, Appellees-Defendants.
CourtCourt of Appeals of Indiana

Russell T. Clarke, Jr., Emswiller, Williams Noland & Clarke, Indianapolis, Linda Meier, Sargent & Meier, Greenwood, for appellants.

Geoffrey Segar, Sherry A. Fabina-Abney, Ice Miller Donadio & Ryan, Indianapolis, for St. Francis Hosp. Center.

Timothy J. Hulett, Douglas A. Tresslar, Harrison & Moberly, Indianapolis, for David M. Dinn as defendant.

David M. Dinn, pro se as counterclaim plaintiff.

Children's Rights Counsel, Inc., Washington, DC, amicus curiae on behalf of counterclaim plaintiff David M. Dinn.

NAJAM, Judge.


William and Vicki Watters appeal from the entry of summary judgment for St. Francis Hospital and for David Dinn, Vicki's former husband, in the Watters' action arising from the Hospital's release of William's mental health records to David. 1 Vicki and David were parties to a custody modification proceeding for their three children. Without notice to the Watters, David or someone acting on his behalf served a subpoena duces tecum on the Hospital to obtain William's mental health records and then used those records in the custody case and in other, unrelated small claims litigation between David and William.

The Watters filed suit against the Hospital and David alleging: (1) violation of the Rights of Persons Being Treated for Mental Illness or Developmental Disabilities statute and the Access to Health Records statute; (2) breach of the physician-patient privilege; (3) abuse of process; (4) invasion of privacy; (5) intentional infliction of emotional distress; and (6) loss of consortium. David filed several counterclaims. Both the Hospital and David moved for summary judgment against the Watters, and David moved for summary judgment on his counterclaims. The trial court entered summary judgment for the Hospital and David as defendants but entered summary judgment for the Watters on David's counterclaims.

We affirm in part, and reverse and remand in part.


We review whether summary judgment was proper on the following issues:

1. Whether the Hospital violated the 1987 versions of the Rights of Persons Being Treated for Mental Illness or Developmental Disabilities statute and the Access to Health Records statute, Indiana Code § 16-14-1.6-1 et seq. and Indiana Code § 16-4-8-1 et seq., respectively.

2. Whether the Hospital had a duty to assert the physician-patient privilege on William's behalf.

3. Whether the Hospital and David committed an abuse of process.

4. Whether the Hospital and David invaded William's privacy.

5. Whether the Hospital and David committed the tort of intentional infliction of emotional distress.

6. Whether the Hospital and David are liable to Vicki for her loss of consortium.

7. Whether the Watters are liable to David on David's counterclaims.


Vicki Watters and David were divorced in December of 1984, and Vicki was awarded custody of their three children. Vicki married William approximately two years later while she was involved in a bitter custody dispute with David. At the custody modification hearing held January 12, 1987, Vicki announced that she had married William.

David then contacted at least two of William's former wives and learned that William's had pled guilty to molesting a former stepdaughter, that he had once attempted suicide and that he had voluntarily sought counseling at the Hospital following his suicide attempt. David met with Thomas Barnes, an attorney, to discuss the procedure for obtaining William's medical records at the Hospital. In David's presence, Barnes telephoned the Hospital and spoke with an unidentified employee who told Barnes that a

subpoena was required to obtain medical records

In anticipation of representing David, Barnes prepared a subpoena duces tecum to the Hospital for the "complete medical file on William D. Watters ... for the years 1980 to present" and placed it in David's file. However, approximately a week later, David informed Barnes that he would not need his services and that he intended to proceed pro se. Barnes surrendered the file to David.

David, or someone acting on his behalf, served the subpoena duces tecum prepared by Barnes on the Hospital. The Hospital complied and notified David that William's records were available. David visited the Hospital and personally took possession of a copy of William's entire medical file at the Hospital.

David subsequently contacted Dr. James Davis, a court appointed psychiatrist in the custody modification case, and offered to supply William's records to Davis to aid in his evaluation of the parties. Dr. Davis received the records.

Over the same period of time, David and William were also involved in small claims litigation arising from a scuffle between the two outside of William's home and William's allegations that David was harassing him. During that litigation, David referred to William's mental condition in open court and in pleadings David filed. We will state additional facts in our discussion where applicable.

Standard of Review

In reviewing the entry of a summary judgment, we consider the same issues and conduct the same inquiry as the trial court. O'Donnell v. American Employers Insurance Co. (1993), Ind.App., 622 N.E.2d 570, 572, trans. denied. Summary judgment is only appropriate where the moving party demonstrates by properly designated evidentiary matter that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). All evidence must be construed most favorably to the nonmoving party. Oelling v. Rao (1992), Ind., 593 N.E.2d 189, 190. Once the moving party meets his burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine issue for trial. Id.; Ind.Trial Rule 56(E).

Even if the trial court does not believe the nonmoving party will be successful at trial, summary judgment should not be entered where material facts conflict or where conflicting inferences may be drawn from the facts. Haase v. Brousseau (1987), Ind.App., 514 N.E.2d 1291, 1292. Summary judgment should not be used as an abbreviated trial. Brewster v. Rankins (1992), Ind.App., 600 N.E.2d 154, 156. Rather, the purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. United Farm Bureau Mutual Insurance Co. v. Schult (1992), Ind.App., 602 N.E.2d 173, 174.

Judge Milligan entered thorough and well-reasoned findings of fact and conclusions of law in support of his judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. See Keskin v. Munster Medical Research Foundation (1991), Ind.App., 580 N.E.2d 354, 362; Celina Mutual Insurance Co. v. Forister (1982), Ind.App., 438 N.E.2d 1007, 1012. However, such findings offer this court valuable insight into the trial court's rationale for its judgment and facilitate appellate review. See Strutz v. McNagny (1990), Ind.App., 558 N.E.2d 1103, 1106, trans. denied.

Issue One: Statutory Health Records Claims
A. Mental Health Records Statute

The Watters first claim that the Hospital's release of William's mental health records to David violated Indiana Code § 16-14-1.6-1 et seq., the Rights of Persons Being Treated for Mental Illness or Developmental Disabilities statute ("mental health records statute"). The Watters argue that the 1987 version of the statute, which was in effect when the Hospital released William's records, applies to his suit against the Hospital

rather than the 1981 version in effect when he received treatment at the Hospital

Section 1, subsections (a)(1)-(6) of the mental health records statute designate the exclusive list of providers subject to the statute. Subsection (a)(7) also extends the statute's coverage to "any other service provider, hospital clinic, program, agency or private practitioner if the person receiving mental health services or developmental training was admitted without that person's consent." In support of its motion for summary judgment, the Hospital submitted the affidavit of Lois Slemp, Vice President of Patient Services at the Hospital, in which Slemp averred that the Hospital did not qualify as any one of the service providers listed under Indiana Code § 16-14-1.6-1(a)(1)-(6). The Watters did not challenge or controvert Slemp's affidavit. The Hospital also relied upon William's deposition testimony in which he admitted that he sought treatment voluntarily at the Hospital in 1981.

Whether we apply the 1981 or 1987 version of the statute, the Hospital is not governed by the mental health records statute. With the exception of minor, nonmaterial changes, the 1981 version of Indiana Code § 16-14-1.6-1(a) is identical to the 1987 version. Thus, Slemp's affidavit and William's deposition testimony establish that under either version of the mental health records statute, the Hospital did not qualify as a service provider under subsections (1) through (6), or as "any other service provider" under subsection (7) that furnished mental health services without a person's consent.

When the party moving for summary judgment establishes a prima facie case, the burden shifts to the party opposing the motion to respond with evidence to establish a genuine issue of material fact. See Keesling v. Baker & Daniels (1991), Ind.App., 571 N.E.2d 562, 566, trans. denied. The Watters did not carry their burden on this issue but instead assumed that the mental health records statute applied to the Hospital. The undisputed evidence establishes that the statute did not apply to the Hospital under these circumstances. Thus, the trial court properly granted...

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