in Re Nikki Lauren Morgan , 2016 Tex. App. LEXIS 11810 ( 2016 )

Opinion issued November 1, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00530-CV
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IN RE NIKKI LAUREN MORGAN, Relator
Original Proceeding on Petition for Writ of Mandamus
OPINION
Nikki Lauren Morgan filed a petition for writ of mandamus to compel the trial
court to vacate its June 13, 2016 order requiring her to produce certain medical
records in her divorce proceeding.1 In two issues, she argues that the trial court
abused its discretion in determining that the litigation exception to the physician-
1
The underlying case is In the Matter of the Marriage of Nathaniel Bradford Morgan
and Nikki Lauren Morgan, cause number 15-DCV-220434, pending in the 328th
District Court of Fort Bend County, Texas, the Honorable Ronald Pope, presiding.
patient privilege applied and in ordering production based on that exception. We
agree and grant the petition.2
Background
Nathaniel Morgan filed a petition for divorce from Nikki Morgan. In his
second amended original petition, Nathaniel asked that the couple be appointed joint
managing conservators of their children but that he be designated the conservator
with the exclusive right to designate the children’s primary residence. He also asked
that Nikki be ordered to pay support and medical support. On March 8, 2015, the
parties signed a mediated settlement agreement for temporary orders in which the
parties agreed to be temporary joint managing conservators.
In January 2016, Nathaniel propounded his first set of written interrogatories
and a request for production of documents, including a request for Nikki’s “medical,
psychological, and psychiatric treatments, consultations, or diagnoses . . . including
but not limited to any prescriptions, since January 1, 2011.” Nikki objected that the
medical records request exceeded the scope of discovery, was unduly burdensome,
and sought records protected by the physician-patient privilege. Nathaniel
subsequently filed a motion to compel and for sanctions. A hearing was held in
April 2016. The trial court signed an order in June 2016, in which it made the
2
A response was requested from Nathaniel Morgan, but none was filed.
2
following findings with respect to request for production number 36 and the claim
of privilege:
a) The parties stipulate, and the Court FINDS, that certain documents sought
in Petitioner’s Request for Production number 36 are privileged pursuant
to Texas Rule of Evidence 509.
b) The court further FINDS that Petitioner relies upon Respondent’s physical
condition as part of Petitioner’s claim or defense and that the
communication or record sought is relevant to that condition, and
accordingly, that the exception set forth in Texas Rule of Evidence
509(e)(4) applies.
c) Pursuant to the Court’s order, on April 26, 2016, Respondent tendered
documents Bates labeled NLM 01623–NLM 01636 (the “records”) to the
Court for in camera inspection. The documents are the records of
Respondent’s treatment for Reflex Sympathetic Dystrophy (RSD)3 by Pain
and Health Management from November 11, 2015 through March 02,
2016.
d) On April 28, 2016, after conducting an in-camera inspection, the Court
ordered the documents Bates Labeled NLM 010623–NLM 01636
produced in full.[4]
The June order states, “The parties stipulate that [Nikki] may seek mandamus
review of the above findings and orders . . . .” The order further states that the parties
3
Reflex Sympathetic Dystrophy is a disorder marked by “pain, swelling, and motor and
sensory disturbances especially of an extremity, and that is often considered a type of
complex regional pain syndrome in which peripheral nerve injury has not been identified.”
MERRIAM-WEBSTER DICTIONARY, www.merriam-
webster.com/medical/reflex%20sympathetic%20dystrophy.
4
In finding (d), the court states it conducted an in camera inspection and ordered documents
produced in April 2016. The mandamus record contains no April 2016 order. Regarding
this, Nikki states in her amended petition: “After several motions to compel, and Relator’s
motions to reconsider the court’s ruling and to clarify the court’s ruling, on June 13, 2016,
the court signed an order . . . .” This is Nikki’s only reference to prior rulings.
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have stipulated that there are additional records that relate to Nikki’s “nerve disorder
or anything tangentially related to, or . . . caused by the treatment of a nerve
disorder.”
After the April hearing on Nathaniel’s motion to compel, but before the June
order, Nikki filed her first amended counter-petition for divorce, in which she sought
to be appointed sole managing conservator with the exclusive right to designate
primary residence of the children, make educational decisions, and consent to
medical, dental, and mental health treatment. In response, Nathaniel filed a third
amended petition on June 26, 2016, contending that he should be appointed sole
managing conservator.
Standard of Review
To be entitled to mandamus relief, a petitioner must show both that the trial
court abused its discretion and that there is no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). Generally, appellate courts
find an abuse of discretion if the trial court’s action was either “without reference to
any guiding rules and principles” or “arbitrary or unreasonable.” Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “A trial court
has no discretion in determining what the law is or applying the law to the facts,
even when the law is unsettled.” In re Brokers Logistics, Ltd., 320 S.W.3d 402, 405
(Tex. App.—El Paso 2010, orig. proceeding) (citing Prudential, 148 S.W.3d at 135).
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A trial court’s clear failure to analyze or apply the law correctly is an abuse of
discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
The scope of discovery is within the trial court’s discretion. See Ginsberg v.
Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). Thus, decisions
concerning the applicability of a privilege are reviewed for an abuse of discretion.
See Smith v. Gayle, 834 S.W.2d 105, 107 (Tex. App.—Houston [1st Dist.] 1992,
orig. proceeding) (citing Walker, 827 S.W.2d at 839–40).
The Litigation Exception to the Physician-Patient Privilege is Inapplicable
In her first issue, Nikki contends that no pleading demonstrates reliance on a
medical condition sufficient to invoke the litigation exception to the physician-
patient privilege. The physician-patient privilege is intended to facilitate full
communication between patients and their physicians and to prevent disclosure of
personal information to third parties. See R.K. v. Ramirez, 887 S.W.2d 836, 840
(Tex. 1994). This privilege is limited by exceptions, including a “litigation
exception,” which applies when “any party relies on the patient’s physical, mental,
or emotional condition as part of the party’s claim or defense and the communication
or record is relevant to that condition.” TEX. R. EVID. 509(e)(4), 510(d)(5).
This exception applies when “(1) the records sought to be discovered are
relevant to the condition at issue, and (2) the condition is relied upon as a part of a
party’s claim or defense, meaning that the condition itself is a fact that carries some
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legal significance.” Ramirez, 887 S.W.2d at 843. Both parts of the test must be
satisfied. Id. Even if both parts of the test are satisfied, when requested, the trial
court must perform an in camera inspection and ensure that production is no broader
than necessary. Id.; M.A.W. v. Hall, 921 S.W.2d 911, 914–15 (Tex. App.—Houston
[14th Dist.] 1996, orig. proceeding).
The court reviews the pleadings to determine whether the requested medical
records are relevant to a medical or mental condition at issue in the case. See
Ramirez, 887 S.W.2d at 844. The test is not simply whether the condition is relevant
“because any litigant could plead some claim or defense to which a patient’s
condition could arguably be relevant and the privilege would cease to exist.” In re
Union Pac. R.R. Co., 459 S.W.3d 127, 130 (Tex. App.—El Paso 2015, orig.
proceeding.). Nor is the test satisfied “if the patient’s condition is merely an
evidentiary or intermediate issue of fact, rather than an ‘ultimate’ issue for a claim
or defense, or if the condition is merely tangential to a claim rather than ‘central’ to
it.” Ramirez, 887 S.W.2d at 842. Instead, the condition must be so central as to
require the jury, as part of its determination of the claim or defense, to “make a
factual determination concerning the condition itself.” Id. at 843.
When this ultimate-issue test is not satisfied, it is an abuse of discretion to
order production of the medical records. See Union Pac., 459 S.W.3d at 133. In
Union Pacific, the plaintiff sought discovery of a party’s medical records concerning
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her admitted medications for diabetes, cholesterol, and nicotine withdrawal, as well
as her treatment for sleep apnea. See id. at 128–29. The trial court abused its
discretion when it ordered production of the records regarding treatment for sleep
apnea because her condition was not an ultimate issue and its tangential relevance
to the negligence claims was insufficient to establish the litigation exception. Id. at
133; see also In re Doe, 22 S.W.3d 601, 610 (Tex. App.—Austin 2000, orig.
proceeding) (holding litigation exception to physician-patient privilege inapplicable
because plaintiff’s claim of negligence, including request for mental-anguish
damages, did not allege “severe emotional condition” to place mental condition at
issue); In re Nance, 143 S.W.3d 506, 512–13 (Tex. App.—Austin 2004, orig.
proceeding) (granting mandamus relief because decedent’s mental-health records,
though they might present intermediate fact issue, were not part of ultimate issues in
medical negligence case); but see In re A., No. 09–06–471–CV, 2006 WL 3823946,
at *2 (Tex. App.—Beaumont Dec. 28, 2006, orig. proceeding) (holding that, even
though no pleadings apparently raised issue of substance abuse, father’s medical
records regarding substance-abuse treatment were relevant to issue of children’s best
interest and upholding limited production).
In its June order, the trial court ruled that Nathaniel “relies upon [Nikki’s]
physical condition as part of [his] claim or defense” and the documents are relevant
to that condition. But Nathaniel’s pleadings contain no allegation that a medical
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condition affects Nikki’s suitability as a conservator. Nor do Nikki’s pleadings raise
any issue concerning her medical condition. The only mention of Nikki’s medical
condition or treatment is in Nathaniel’s request for production of documents
concerning Nikki’s treatment for RSD. Thus, although the trial court found that
Nathaniel relies on Nikki’s condition as part of his claim or defense and the medical
records are relevant to that condition, the record does not support that finding.
Because no pleading contains a claim or defense mentioning Nikki’s medical
condition or treatment for RSD, the trial court abused its discretion in concluding
that the litigation exception applies and in ordering production of Nikki’s medical
records concerning her RSD.
In her second issue, Nikki claims that the trial court’s order is not in
compliance with Ramirez because it is overbroad. See Ramirez, 887 S.W.2d at 844.
Having found that the trial court abused its discretion in ordering production of
Nikki’s medical records regarding her treatment for RSD, we need not reach this
issue.
We conditionally grant the petition and direct the trial court to vacate the
portion of its order of June 13, 2016, requiring production of medical records
concerning Nikki’s treatment for RSD. We are confident the trial court will
promptly comply. The writ will issue only if it does not.
8
Harvey Brown
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
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