Tavella-Zirilli, K. v. Ratner Companies

J-S29033-21
2021 PA Super 240KAREN TAVELLA-ZIRILLI AND DOMINIC : IN THE SUPERIOR COURT OF
ZIRILLI, H/W : PENNSYLVANIA
:
Appellants :
:
v. :
:
RATNER COMPANIES, L.C. :
(INCORRECTLY IDENTIFIED AS RATNER :
COMPANIES D/B/A HAIR CUTTERY), :
CREATIVE HAIRDRESSERS, INC. D/B/A :
HAIR CUTTERY (INCORRECTLY :
IDENTIFIED AS HAIR CUTTERY), AND :
STEPHANIE RICKARDS, :
:
Appellees : No. 2875 EDA 2019
Appeal from the Order Dated August 8, 2019
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 180501567
BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 8, 2021
Appellants, Karen Tavella-Zirilli and Dominic Zirilli (the Zirillis), appeal
from an August 8, 2019, order, which granted in part the motion filed by
Appellees, Ratner Companies, L.C. and Creative Hairdressers, Inc. d/b/a Hair
Cuttery, to compel production of mental health records and ordered the Zirillis
to provide unredacted copies of the records for in camera review by a special
master for a privilege determination. For the reasons set forth below, we
reverse.
On May 17, 2018, the Zirillis filed a negligence action against Appellees.
According to the Zirillis, Ms. Tavella-Zirilli suffered injuries after she received
*Former Justice specially assigned to the Superior Court.
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a lengthy hair color treatment at a Hair Cuttery salon, including chemical burns
to her scalp; permanent scarring from a rash that developed on her scalp and
spread to her neck, face, arms, and chest; associated pain; headaches;
neuropathy; a stress-induced relapse of smoking; loss of life’s pleasures;
mental anguish; embarrassment; and emotional distress. Amended
Complaint, 7/17/2018, at 7-8. Mr. Zirilli asserted a loss of consortium claim.
Id. at 8-9.
As part of discovery, Appellees served interrogatories and a request for
production of documents. Appellees received medical records from Ms.
Tavella-Zirilli’s primary physician wherein the physician observed, prior to the
salon hair color treatment at issue, areas of Ms. Tavella-Zirilli’s skin with
pockmarks and excoriations. The primary physician’s records also referenced
Ms. Tavella-Zirilli’s treatment with a mental health provider, mental health
conditions, and medications that pre-date her salon visit. Similarly, medical
records from Ms. Tavella-Zirilli’s dermatologist referenced observations of
excoriations and scars as well as a mental health condition that affects the
skin.
Further, as part of this action, Ms. Tavella-Zirilli submitted to an
independent psychological examination. The examining psychologist
indicated that, in addition to what was already contained in the
aforementioned medical records, he believed Ms. Tavella-Zirilli may have also
been diagnosed previously with other mental health conditions that affect the
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skin, scalp, and hair. With respect to mental health treatment, the Zirillis
answered Appellees’ interrogatories without objection, and responded to the
production request by stating that they had already provided all requested
documents in their possession.
Subsequently, during their depositions the Zirillis provided additional
information about marriage counseling they had undergone and mental health
treatment Ms. Tavella-Zirilli had received at Springfield Psychological, which
prompted Appellees to provide notice of their intent to serve a non-party
subpoena on Springfield Psychological and one of its providers to obtain
records of the Zirillis’ treatment. The Zirillis objected, and Appellees filed a
motion to strike. The trial court ordered Springfield Psychological to produce,
to the Zirilli’s counsel, all records in its possession that related to treatment
provided to the Zirillis.
After the Zirilli’s counsel received the records, the Zirillis filed a privilege
log, which indicated that they had received two sets of mental health records
from Springfield Psychological. The first set, marriage counseling records
relating to the Zirillis, was produced.1 The second set, Ms. Tavella-Zirilli’s
mental health records, is the subject of this appeal. The Zirillis objected to
producing Ms. Tavella-Zirilli’s mental health records on the basis that they
1 The Zirillis redacted a part of one page of the marriage counseling records
to protect the privacy of third parties. Appellees do not seek to compel
production of that redacted record.
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were privileged and protected from disclosure by the Mental Health Procedures
Act (“MHPA”), 50 P.S. § 7101-7503, and/or the psychiatrist/psychologist-
patient privilege, codified at 42 Pa.C.S.A. § 5944 of the Judicial Code.
Appellees moved to strike the privilege objections and compel in camera
review of the records, to which the Zirillis responded. The trial court appointed
a special master to determine privilege. The special master held a conference
on August 7, 2019. According to the Zirillis, the special master determined at
the conference that Ms. Tavella-Zirilli had not waived her right to assert the
psychiatrist/psychologist-patient privilege, but indicated he nonetheless
wanted to conduct an in camera review of her mental health records.2
The Zirillis did not provide the records to the special master for in
camera review. On August 8, 2019, the trial court granted Appellees’ motion
to strike, compelled production of Ms. Tavella-Zirilli’s mental health records,
and ordered the Zirillis to provide unredacted copies of all of the records for
in camera review by the special master to make a privilege determination.
2 There is no transcript of this conference.
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This timely-filed appeal followed.3, 4 The court did not order the Zirillis
to file a concise statement pursuant to Pa.R.A.P. 1925(b) and none was filed.
The trial court complied with Pa.R.A.P. 1925(a).5
On appeal, the Zirillis claim that Ms. Tavella-Zirilli’s mental health
records from Springfield Psychological are privileged and not subject to in
camera review. They raise the following two issues for our review:
1. Whether a trial court Order compelling production of privileged
mental health records for a in camera review constitutes a
collateral order appealable as of right and reversible error, as held
by the Pennsylvania Superior Court inter alia in Farrell v. Regola,
150 A.3d 87 (2016).
2. Whether a plaintiff does not waive the
psychiatrist/psychologist-patient privilege regarding her personal
mental health records merely by filing a lawsuit, where she does
not allege to have suffered any mental illness nor to have incurred
mental health treatment expenses as the result of the physical
injury giving rise to the lawsuit, as held by the Pennsylvania
Superior Court inter alia in Gormley v. Edgar, 995 A.2d 1197(2010).
3 On November 1, 2019, this Court directed the Zirillis to show cause as to
why the appeal should not be quashed as an appeal from a non-final order.
The Zirillis responded and on November 15, 2019, this Court discharged the
order and referred the matter to this panel. We discuss the issue of
appealability infra.
4 Upon notice that Appellees had initiated bankruptcy proceedings in the State
of Maryland, this Court stayed the appeal on May 14, 2020, in accordance with
the automatic stay provision of the U.S. Bankruptcy Code, 11 U.S. § 362.
Order, 5/14/20. The bankruptcy stay has been lifted and the matter is now
ready for disposition. Order, 3/19/21.
5 The Honorable John M. Younge, who entered the August 8, 2019, order that
is the subject of this appeal, was appointed subsequently to the U.S. District
Court for the Eastern District of Pennsylvania. The Honorable Denis P. Cohen
issued the Rule 1925(a) opinion.
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Appellants’ Brief at 9 (suggested answers omitted; citation format altered).
Appealability
We begin with the first issue of whether the order from which the Zirillis
appeal is appealable in that appealability implicates our jurisdiction. In the
Interest of J.M., 219 A.3d 645, 650 (Pa. Super. 2019). “Jurisdiction is purely
a question of law; the appellate standard of review is de novo and the scope
of review plenary.” Id. (citation and internal quotation marks omitted). To
be appealable, the order must be: (1) a final order, Pa.R.A.P. 341-42; (2) an
interlocutory order appealable by right or permission, 42 Pa.C.S.A. § 702(a)-
(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P. 313. Rule 313
provides as follows:
(a) General rule.--An appeal may be taken as of right from a
collateral order of a trial court or other government unit.
(b) Definition.--A collateral order is an order separable from and
collateral to the main cause of action where the right involved is
too important to be denied review and the question presented is
such that if review is postponed until final judgment in the case,
the claim will be irreparably lost.
Pa.R.A.P. 313.
It is well settled that an order mandating disclosure of records subject
to privilege, including mental health records, is appealable as a collateral order
pursuant to Rule 313. Commonwealth v. Segarra, 228 A.3d 943, 948–49
(Pa. Super. 2020); Pasquini v. Fairmount Behavioral Health Sys., 230
A.3d 1190, 1194 (Pa. Super. 2020). Thus, the order at issue here is
appealable as a collateral order.
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Statutory Privilege
Having determined that this Court has jurisdiction over this appeal
pursuant to the collateral order doctrine, we now proceed to examine the
second issue of whether the Zirillis must produce for in camera review the
records of Ms. Tavella-Zirilli’s counseling sessions at Springfield Psychological.
“In reviewing the propriety of a discovery order, we determine whether the
trial court committed an abuse of discretion.” Pasquini, 230 A.3d at 1194
(citation and quotation marks omitted). However, “the privilege asserted is
codified, and thus, ‘the interpretation of a statute is a question of law, resulting
in a standard of review that is de novo and a scope of review that is plenary.’”
Segarra, 228 A.3d at 950, quoting Farrell, 150 A.3d at 96.
As noted, the Zirillis contend the trial court’s August 8, 2019, order
impermissibly requires them to disclose privileged records for in camera
review. Specifically, they argue that Ms. Tavella-Zirilli’s mental health records
are protected from disclosure under the MHPA and the
psychiatrist/psychologist-patient privilege, that they have not implicitly
waived privilege by initiating this negligence action or seeking damages for
pain and suffering, and that there are less intrusive means available to obtain
the same information. Appellants’ Brief at 18-26.
MHPA
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We first examine whether Ms. Tavella-Zirilli’s records are protected by
the MHPA, keeping in mind that the MPHA is to be strictly construed. Segarra,
228 A.3d at 950 (citation omitted). “Section 7111 of the MHPA mandates that
all documentation concerning persons in treatment be kept confidential, in the
absence of patient consent, except in four limited circumstances.” Id. at 951
(citation and internal quotation marks omitted); 50 P.S. § 7111(a).
However, section 7103 of the MHPA specifies that “[t]his act establishes
rights and procedures for all involuntary treatment of mentally ill persons,
whether inpatient or outpatient, and for all voluntary inpatient treatment of
mentally ill persons.” 50 P.S. § 7103. While the Zirillis reference the MHPA
throughout their brief, they do not present any argument as to its applicability.
See Appellants’ Brief at 4, 14, 17-21, 23-36; compare Appellees’ Brief at 19-
20 (arguing Ms. Tavella-Zirilli’s records are outside the scope of the MHPA).
There is nothing in the record to indicate that Ms. Tavella-Zirilli’s treatment at
Springfield Psychological was anything but voluntary outpatient treatment.
Accordingly, Ms. Tavella-Zirilli’s mental health records are outside the scope
the MHPA and not protected from disclosure under this statute.6 See
Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super. 2010) (holding
6 The trial court erroneously found the MHPA applicable herein when it
concluded the Zirillis waived their privilege thereunder. See Trial Court
Opinion, 4/16/2021, at 5-9.
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voluntary outpatient mental health treatment records are not encompassed
within the protection of the MHPA).
Psychiatrist/Psychologist-Patient Privilege
We next analyze the psychiatrist/psychologist-patient privilege, 42
Pa.C.S.A. § 5944. The Zirillis argue that this privilege protects Ms. Tavella-
Zirilli’s mental health records from disclosure of any kind, including in camera
review. Appellants’ Brief at 4, 9, 14-15, 17-18, 21, 25. The statute provides
as follows:
No psychiatrist or person who has been licensed under the act of
March 23, 1972 (P.L. 136, No. 52), [63 P.S. § 1201 et seq.,] to
practice psychology shall be, without the written consent of his
client, examined in any civil or criminal matter as to any
information acquired in the course of his professional services in
behalf of such client. The confidential relations and
communications between a psychologist or psychiatrist and his
client shall be on the same basis as those provided or prescribed
by law between an attorney and client.
42 Pa.C.S.A. § 5944 (footnote omitted).
The purpose of the psychiatrist/psychologist-patient privilege is “to aid
in the effective treatment of the client by encouraging the patient to disclose
information fully and freely without fear of public disclosure.” Gormley, 995
A.2d at 1204 (citation and quotation marks omitted). “The privilege is based
upon a strong public policy designed to encourage and promote effective
treatment and to insulate the client’s private thoughts from public disclosure.”
Id. (citation omitted). “This Court holds this privilege in the highest regard,
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recognizing that such confidential statements are the key to the deepest, most
intimate thoughts of an individual seeking solace and treatment. However,
such confidential communications are only protected to the same extent as
those between an attorney and his client.” Id.The psychiatrist/psychologist-patient privilege “is designed to protect
confidential communications made and information given by the client to the
psychotherapist in the course of treatment, but does not protect the
psychotherapist’s own opinion, observations, diagnosis, or treatment
alternatives.” Segarra, 228 A.3d at 953-54 (quoting Farrell, 150 A.3d at
97-98). The psychiatrist/psychologist-patient privilege “applies not only to
psychiatrists and psychologists, but to any member of a patient’s treatment
team.” Segarra, 228 A.3d at 954 (citation omitted). “Moreover, in cases
where the section 5944 privilege has been found to apply, case law has
precluded material from being subjected to even in camera review by the trial
courts.” Segarra, 228 A.3d at 954 (citation, brackets, and quotation marks
omitted); see also Commonwealth v. Kyle, 533 A.2d 120, 131 (Pa. Super.
1987) (“Subjecting the confidential file to in camera review by the trial court
(as well as the appellate courts and staff members) would jeopardize the
treatment process and undermine the public interests supporting the
[psychiatrist/psychologist-patient] privilege. Simply stated, an absolute
privilege of this type and in these circumstances requires absolute
confidentiality.”).
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Here, Appellees’ discovery requests were general and very broad,
seeking in some instances a lifetime’s worth of Ms. Tavella-Zirilli’s medical
records, including mental health treatment.7 In their notice of intent to serve
7 For example, in their request for production of documents, Appellees sought,
inter alia:
¶ 15. Copies of any and all bills, reports, notes and records
prepared by any physician, hospital or healthcare provider who
has examined, evaluated and/or treated [Ms. Tavella-Zirilli] for
injuries, diseases, deformities or impairments sustained by [Ms.
Tavella-Zirilli] or suffered from by [Ms. Tavella-Zirilli] prior to
and/or subsequent to the accident herein.
¶ 18. Any and all medical records in [the Zirillis]’ possession
regarding any treatment that [Ms. Tavella-Zirilli] has ever
received for the following:
a. Rashes;
b. Allergies;
c. Skin conditions;
d. Alopecia;
e. Skin reactions;
f. Immunological conditions;
g. Any nervous disorder;
h. Neurodermatitis.
¶ 22. Any and all documents, records, communications, or
writings identifying [Ms. Tavella-Zirilli]’s treatment by an allergy
doctor, immunologist, dermatologist, plastic surgeon,
psychotherapist, and/or psychiatrist from January 1, 1998
through the present.
(Footnote Continued Next Page)
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subpoenas on Springfield Psychological and one of its providers, Appellees
sought “any and all counseling records pertaining to Dominic Zirilli AND
Karen Tavella-Zirilli.” Plaintiffs’ Objection to Subpoena, 6/12/19, at Exh. A
(Defendants’ Non-Party Subpoenas) (capitalization in original; emphasis
added). The trial court’s order directed the Zirillis to “provide un-redacted
copies of all Springfield Psychological Records to Special Master Judge
Manfredi for an in camera review to make a privilege determination.” Order,
8/8/19 (emphasis added).
Records of the opinions, observations, diagnoses, or treatment
alternatives of Ms. Tavella-Zirilli’s treatment provider(s) at Springfield
Psychological that do not report Ms. Tavella-Zirilli’s communications are not
protected by the psychiatrist/psychologist-patient privilege. See Farrell, 150
A.3d at 97-98.
The August 8, 2019, order, however, was not limited to these types of
documents. Rather, it directed that all records be provided. In doing so, it
effectively ordered disclosure of records containing communications made by
Ms. Tavella-Zirilli in the course of her treatment at Springfield Psychological,
despite such records falling squarely within the parameters of the
psychiatrist/psychologist-patient privilege. Because Ms. Tavella-Zirilli
communicated her private thoughts to her therapist for the purpose of
First Set of Requests for Production to Plaintiffs, 9/17/18 at ¶ 22; see also
id. at ¶ 23 (requesting “Any and all documents of any nature whatsoever
referred to in [the Zirillis]’ Answers to Interrogatories”).
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treatment, section 5944 protects records reflecting her thoughts from
disclosure, including in camera review. Id.
Therefore, while the trial court did not err in ordering the production of
some of the documents, it abused its discretion by compelling the Zirillis to
produce the records in their entirety.
Waiver
Having concluded that records of communications made by Ms. Tavella-
Zirilli in the course of her treatment at Springfield Psychological are privileged
under section 5944, we now examine whether she has waived that privilege.
“As a general matter, once it is established that records are privileged
from disclosure to third parties, the burden shifts to the party seeking
disclosure to establish that an exception to the privilege exists which would
allow the disclosure.” Segarra, 228 A.3d at 955, quoting In re Fortieth
Statewide Investigating Grand Jury, 220 A.3d 558, 568 (Pa. 2019). Thus,
the burden rests with Appellees to demonstrate that Ms. Tavella-Zirilli waived
the privilege conferred by statute. See id.The parties do not dispute that Ms. Tavella-Zirilli has not explicitly
waived her statutory privilege under section 5944. Rather, relying on
Octave ex rel. Octave v. Walker, 103 A.3d 1255 (Pa. 2014), Appellees
argue that the Zirillis implicitly waived statutory privilege because they “put
[Ms.] Tavella-Zirilli’s mental and physical health at issue (as to both causation
and damages) by filing a personal injury action claiming that her skin condition
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was caused by the hair color service.” Appellees’ Brief at 24. Appellees
maintain that evidence of Tavella-Zirilli’s mental health diagnoses and related
skin conditions “are directly relevant to the nature and source of the skin
lesions the Zirillis attribute to [Appellees], with the potential to demonstrate
definitively that the salon service on December 16, 2016, was by no means a
substantial factor in causing the harm the Zirillis allege” and “is not readily or
reliably available through the less intrusive means already attempted.” Id. at
28.
On the other hand, the Zirillis argue that they have not implicitly waived
statutory privilege by initiating this negligence action or seeking damages for
pain and suffering. Appellants’ Brief at 22-25. The Zirillis contend Octave is
distinguishable because our Supreme Court “etche[d] out only a very narrow
exception” due to its unique facts, clearly urged caution in accepting implied
waiver, and recognized that confidentiality was of paramount importance. Id.
at 20-21. They maintain that there are less intrusive means available to
obtain the same information, i.e., deposition and independent psychological
examination of Ms. Tavella-Zirilli. Id. at 22.
The trial court concluded that the Zirillis implicitly waived their privilege
under both the MHPA and the psychiatrist/psychologist-patient privilege. Trial
Court Opinion, 4/16/21, at 5-9. The trial court explained as follows:
[The Zirillis] should have reasonably known by filing this lawsuit
alleging injuries to Ms. Tavella-Zirilli’s scalp that [any condition
that is affects it] would come to light. It was reasonable for [the
Zirillis] to foresee that Appellees would seek all relevant mental
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health records relating to Ms. Tavella-Zirilli’s [treatment affecting
her skin, scalp, or hair] to help form their defense. As such, [the
Zirillis] have waived the privileges over their mental health
records afforded by the MHPA and psychiatrist/psychologist-
patient privilege pursuant to Octave and Gormley. [The Zirillis]
will ultimately be provided the added protections of in-camera
review before any mental health treatment records are ultimately
provided to Appellees; the intrusion on [the Zirillis]’ privacy here
will thus be minimal. Accordingly, Judge Younge’s August 8,
2019, Order properly ordered in-camera review of [Appellants]’
mental health records related to Ms. Tavella-Zirilli’s treatment
[affecting the skin].
Trial Court Opinion, 4/16/21, at 9 (citations omitted).
Our Supreme Court’s decision in Octave did not address the
psychiatrist/psychologist-patient privilege, but rather the statutory privilege
set forth in the MHPA. The Octave Court “recognized a limited exception for
finding implicit waiver under circumstances where the defendant was seeking
mental health information about a deceased plaintiff that was unavailable
through other means.” C.L. v. M.P., 255 A.3d 514, 523 (Pa. Super. 2021).
As this Court recently explained:
In Octave, our Supreme Court addressed the disclosure of
confidential mental health records in the context of a personal
injury matter. Octave, 103 A.3d at 1256-57. In that case, the
husband sustained injuries after he was struck by a tractor-trailer.
After the incident, the state police issued a report concluding that
the husband had attempted to commit suicide. Thereafter, the
wife filed a personal injury lawsuit seeking money damages on
behalf of herself and her incapacitated husband. The defendants
argued that the husband intentionally caused his own injuries by
attempting suicide. To defend the case against them, the
defendants requested access to the husband’s mental health
records. The plaintiffs asserted the husband’s privilege under the
MHPA.
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In addressing plaintiffs’ claim of privilege, our Supreme
Court cited with approval the following statement made by this
Court in Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998):
We cannot believe that the Pennsylvania General
Assembly intended to allow a plaintiff to file a lawsuit
and then deny a defendant relevant evidence, at
plaintiff’s ready disposal, which mitigates defendant’s
liability. Rather[,] the General Assembly must have
intended the privileges to yield before the state’s
compelling interest in seeing that truth is ascertained
in legal proceedings and fairness in the adversary
process.
Octave, 103 A.3d at 1260 (citations omitted). After discussing
similar decisions in other jurisdictions, the High Court held that “a
patient waives his confidentiality protections under the MHPA
where, judged by an objective standard, he knew or should have
known his mental health would be placed directly at issue by filing
the lawsuit.[”] Id. at 1262 (footnote omitted).
The Octave Court further concluded that there existed no
“less intrusive means” to obtain the same type of information as
contained in the husband’s mental health records. The Court
explained that because the husband ultimately died from his
injuries, it was not possible to obtain information about his mental
health through less intrusive alternatives, such as interrogatories
and independent psychological evaluations. Octave, 103 A.3d at
1263 n.10.
C.L., 255 A.3d at 521 (footnote omitted).
In Gormley, this Court analyzed waiver of the
psychiatrist/psychologist-patient privilege in section 5944, holding that the
plaintiff waived that privilege in a personal injury action where she “directly
placed her mental condition at issue when she alleged that she suffered from
anxiety as a result of [a motor vehicle] accident.” 995 A.2d at 1206. Stating
the psychiatrist/psychologist-privilege “may be waived in civil actions where
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the client places the confidential information at issue in the case,” this Court
explained that “[i]t would clearly be unfair for a party to seek recovery for
anxiety if that mental health issue predated the accident. Moreover, where a
party seeks recovery for aggravation of a pre-existing mental health condition,
records of prior treatment for that condition are discoverable.” Gormley, 995
A.2d at 1204, 1206 (citation, quotation marks, and footnote omitted).
Here, as analyzed supra, the trial court erred in concluding the MHPA
was applicable and that the Zirillis implicitly waived privilege under that
statute. Accordingly, we find the parties’ and trial court’s reliance on Octave
inapposite because it turned on section 7111 of the MHPA, which is
inapplicable herein. Accord Gormley, 995 A.2d 1197 (rejecting plaintiff’s
privacy argument rooted in the MHPA where the confidentiality provision in
section 7111 of the MHPA was inapplicable to plaintiff).
With respect to the psychiatrist/psychologist-patient privilege, we first
point out, and as the trial court correctly noted, general averments of shock,
mental anguish, and humiliation do not place a party’s mental condition at
issue or result in a waiver of the psychiatrist/psychologist-patient privilege.
Gormley, 995 A.2d at 1205; Trial Court Opinion, 4/16/21, at 6. Therefore,
Ms. Tavella-Zirilli’s general averments in the amended complaint of “loss of
life’s pleasures; mental anguish; embarrassment and emotional distress” do
not result in a waiver of the privilege. Amended Complaint at ¶ 22.
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We next examine whether the Zirillis directly placed Ms. Tavella-Zirilli’s
mental condition at issue in this case. The amended complaint does not raise
allegations of mental injuries as a result of Ms. Tavella-Zirilli’s salon hair color
treatment. Rather, Appellees’ defense to liability is that Ms. Tavella-Zirilli’s
injuries pre-date her receipt of the salon hair color treatment and were caused
in whole or in part by a mental health condition affecting her skin, scalp, or
hair.
Thus, the Zirillis knew or should have known that by commencing suit
and alleging Ms. Tavella-Zirilli’s injuries were caused by Appellees’ negligence
in coloring and treating her hair, they were placing any condition that affects
the skin, scalp, or hair at issue as to causation.
Nonetheless, although evidence of a condition affecting the skin, scalp,
or hair is relevant to liability, it does not vitiate Ms. Tavella-Zirilli’s expectation
of confidentiality in her mental health records. See C.L., 255 A.3d 514, 523
(citing M.M. v. L.M., 55 A.3d 1167, 1174 (Pa. Super. 2012)). It is not Ms.
Tavella-Zirilli’s mental health that is at issue; rather, it is any condition,
physical or mental, that could have caused or affected injuries to Ms. Tavella-
Zirilli’s skin, scalp, or hair.
The Zirillis did not consent to disclosure of Ms. Tavella-Zirilli’s mental
health records, and they consistently objected to both disclosure and the
subpoena. Appellees have shown a need for records of diagnoses, treatment,
and observations involving an interplay between Ms. Tavella-Zirilli’s skin,
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scalp, and hair and her mental health, but they have not shown a need for
records of Ms. Tavella-Zirilli’s privileged communications about that interplay
and Ms. Tavella-Zirilli has not put those communications at issue by bringing
this action.
In other words, what is relevant are records showing a treatment
provider believes Ms. Tavella-Zirilli has skin, scalp, or hair injuries caused by
her mental health and when those injuries occurred, not Ms. Tavella-Zirilli’s
innermost thoughts about her mental health, regardless of whether those
communications are about her skin, scalp, or hair. Thus, Ms. Tavella-Zirilli
has not waived the psychiatrist/psychologist-patient privilege by commencing
this suit.
Based on the foregoing, we conclude that because the breadth of the
August 8, 2019, order requires production of some records that are protected
by the psychiatrist/psychologist-patient privilege and there was no consent to
release of the records or waiver of the privilege, the trial court erred in
compelling production of unredacted copies of all Springfield Psychological
records for in camera review, and in failing to limit the scope of the order.
M.M., 55 A.3d at 1174 (reversing trial court order for production of records
because production was not limited to opinions, observations, and diagnoses);
Commonwealth v. Simmons, 719 A.2d 336, 343-44 (Pa. Super. 1998)
(holding trial court erred in requiring mental health provider to turn over its
complete patient file to trial court for in camera privilege determination, and
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vacating trial court order for production of complete file because some
documents in file were subject to psychiatrist/psychologist-patient privilege).
Moreover, we also note that while the trial court’s order attempted to
provide some protection with in camera review, it failed to impose adequate
safeguards to prevent disclosure outside of litigation, such as a protective
order or confidentiality agreement restricting Appellees, their attorneys, and
any other person receiving the records or information from the records, from
disclosing the records or information outside this litigation. Without such a
restriction on the use of the mental health records and information obtained
by the order, protection of the Zirillis’ expectation of confidentiality is
inadequate.
In sum, because the order included records protected by the
psychiatrist/psychologist-patient privilege and no protective order limiting the
use of the records was entered, we reverse the trial court’s August 8, 2019,
order granting Appellees’ motion to strike the Zirillis’ privilege objections and
compelling the Zirillis to provide unredacted copies of all Springfield
Psychological records for in camera review.
We remand this case with instructions that the trial court grant a
protective order for the Zirillis to provide only the records of Ms. Tavella-
Zirilli’s mental health treatment at Springfield Psychological which concern
diagnosis, treatment, or observation of a mental health condition affecting the
skin, scalp, or hair, with any communications by Ms. Tavella-Zirilli redacted
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J-S29033-21
and that restricts the disclosure of such records and any information obtained
from them outside this personal injury action.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2021
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