P. K. . v. S. S.

J-S32002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.S. :
:
Appellant : No. 28 EDA 2020
Appeal from the Order Entered December 9, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): No. 180808471
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 09, 2020
Appellant S.S. (Husband) appeals from the order of the Court of
Common Pleas of Philadelphia County (trial court) denying his motion for a
protective order with respect to a subpoena for his medical records in an action
filed by Appellee P.K. (Wife) seeking an annulment of their marriage. For the
reasons set forth below, we reverse.
Husband and Wife were married on April 20, 2018. At the time that
they first met, Husband lived in Michigan and Wife lived in Philadelphia,
Pennsylvania. N.T., 3/27/19, at 13. Following the marriage, Husband moved
from Michigan and he and Wife lived together in Philadelphia from May 21,
2018 through July 31, 2018. Id. at 29-30, 82-83.
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* Retired Senior Judge assigned to the Superior Court.
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On August 16, 2018, Wife filed a petition to annul the marriage on the
ground of fraud, alleging that the parties discussed whether either of them
had any psychiatric or psychological conditions prior to agreeing to marry and
that Husband misrepresented that he had not been diagnosed with any
psychiatric or psychological condition. Petition for Annulment of Marriage
¶7(e), (g). Wife contends that on August 5, 2018, she discovered that
Husband had been diagnosed with Attention Deficit Hyperactivity Disorder
(ADHD) and dysthymic disorder and that she would not have married him if
she had known of those diagnoses. N.T., 3/27/19, at 9-11, 32, 57; Wife’s
Brief in Opposition to Protective Order at 4-5; Petition for Annulment of
Marriage ¶7(e). Wife has also alleged that Husband, a citizen of India who is
legally in the United States and had a pending employer-sponsored application
for a green card, fraudulently induced her to marry him in order to obtain a
spousal-sponsored green card application, which would be acted on more
quickly than the employer-sponsored application. Petition for Annulment of
Marriage ¶7(b), (f); N.T., 3/27/19, at 20, 24-29, 39.
Husband denied that he misrepresented his psychiatric or psychological
condition to Wife, denied that he married her to obtain a spousal sponsored
green card, and denied that he committed any immigration fraud. Answer to
Petition for Annulment of Marriage ¶7(b), (e)-(f). Husband filed a counter-
claim for divorce, seeking a no-fault divorce and a fault divorce.
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On March 19, 2019, Wife file a motion to compel Husband to answer
interrogatories and produce documents concerning his mental health history.
Following a hearing, the trial court on May 9, 2019 entered an order denying
the motion to compel without prejudice. Trial Court Order, 5/9/19.
On April 4, 2019, Wife also served Husband with a notice of intent to
serve a subpoena on the Amen Clinic, Inc. (Amen Clinic) for production of the
following documents:
Any and all documentation/information of any nature or kind,
whatsoever, including, but not limited to, all records, reports,
notes or schedules, all raw data diagnosis or diagnoses, history or
histories, notes and/or records of consultations, prognosis or
prognoses and/or treatment(s), mental status examination(s),
clinical abstracts, charts for any condition(s) or symptoms for
which [Husband] has and/or is diagnosed with and/or treated for,
including, without limitation, psychiatric disorders, psychological
disorders, and/or mental or nervous conditions, including but not
limited to depression or anxiety.
Subpoena to Amen Clinic. On April 17, 2019, Husband filed an objection to
the subpoena on the grounds that the medical records that it seeks are
privileged, that they are private and confidential personal information, and
that they are irrelevant, and moved for a protective order quashing the
subpoena. Following a hearing, a different judge of the trial court on
December 9, 2019 entered an order denying Husband’s motion for a protective
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order. Husband timely appealed this order.1 On January 24, 2020, this Court
entered an order staying the subpoena pending this appeal.
Husband argues that the May 9, 2019 order denying Wife’s motion to
compel barred the trial court from holding that the documents that the
subpoena seeks are relevant to this proceeding and barred the trial court from
allowing their discovery. We do not agree.
Under the coordinate jurisdiction rule, an aspect of the law of the case
doctrine, a judge may generally not alter the resolution of a legal question
previously decided by another judge of the same court. Riccio v. American
Republic Insurance Co., 705 A.2d 422, 425 (Pa. 1997). This rule, however,
applies only where the second judge rules on the same type of motion as the
first judge; the coordinate jurisdiction rule does not bar a judge from ruling
differently where the motions are not of the same type. Id.; K.H. ex rel.
H.S. v. Kumar, 122 A.3d 1080, 1091-92 (Pa. Super. 2015); Mellon Bank,
N.A. v. National Union Insurance Co. of Pittsburgh, 768 A.2d 865, 870-
71 (Pa. Super. 2001). The issue of whether the coordinate jurisdiction rule
applies is a question of law subject to our plenary, de novo review. Zane v.
Friends Hospital, 836 A.2d 25, 30 n.8 (Pa. 2003).
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1 Although the December 9, 2019 denial of the motion for a protective order
is not a final order, this Court has jurisdiction to decide this appeal because
an order requiring disclosure of allegedly privileged material is an appealable
collateral order under Pa.R.A.P. 313. Farrell v. Regola, 150 A.3d 87, 95-96
(Pa. Super. 2016); Buckman v. Verazin, 54 A.3d 956, 959 (Pa. Super.
2012); Gormley v. Edgar, 995 A.2d 1197, 1201 (Pa. Super. 2010).
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Here, while the two motions both related to discovery of Husband’s
medical history, they were different motions. The first motion was a motion
filed by Wife to compel discovery from Husband concerning his mental health
history for the last five years. Wife’s Motion to Compel; Husband’s Responses
to Wife’s First Set of Interrogatories, Nos. 72-74. The instant matter, in
contrast, was a motion for a protective order filed by Husband to prevent
discovery of medical records from the specific provider that Wife alleged had
diagnosed the conditions on which she bases her annulment claim. Moreover,
although the first judge denied the motion to compel on the ground that the
information and records sought had not been shown to be relevant, she denied
the motion “without prejudice.” N.T., 5/9/19, at 10, 13-14; Trial Court Order,
5/9/19. Given the differences in the motions and the fact that the first motion
was denied without prejudice, the coordinate jurisdiction rule did not bar the
trial court from denying the motion for a protective order.
With respect to the merits, Husband argues that the trial court erred in
denying the motion for a protective order because the subpoena seeks records
protected by the psychiatrist/psychologist-patient privilege. We conclude that
some of the documents sought by Wife’s Amen Clinic subpoena are not
protected by the psychiatrist/psychologist-patient privilege, but that the
subpoena also seeks privileged records and that the trial court therefore erred
in failing to grant a protective order limiting the scope of the subpoena.
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The issue of whether medical records are protected from discovery by
the psychiatrist/psychologist-patient privilege is a question of law subject to
our plenary, de novo review. Commonwealth v. Segarra, 228 A.3d 943,
950 (Pa. Super. 2020); Farrell v. Regola, 150 A.3d 87, 96 (Pa. Super. 2016).
The statute setting forth this privilege provides:
No psychiatrist or person who has been licensed under the act of
March 23, 1972 (P.L. 136, No. 52), 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. § 5944.
This privilege protects from discovery a psychiatrist’s or psychologist’s
records that contain information communicated by the patient for treatment,
even if that information is highly relevant in a civil or criminal case, unless the
patient consents to the disclosure or waives the privilege. In re J.M.G., 229
A.3d 571, 579-80 (Pa. 2020); Farrell, 150 A.3d at 97-101; M.M. v. L.M., 55
A.3d 1167, 1174 (Pa. Super. 2012); Commonwealth v. Simmons, 719 A.2d
336, 340-41 (Pa. Super. 1998). It does not protect from disclosure the
psychiatrist’s or psychologist’s opinions, diagnoses, observations, or
treatment, and does not apply to records that do not contain patient
communications. Farrell, 150 A.3d at 97-98; M.M., 55 A.3d at 1174; Gates
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v. Gates, 967 A.2d 1024, 1029 (Pa. Super. 2009); Simmons, 719 A.2d at
341.2
Here, the subpoena seeks records of “diagnoses,” “prognoses,”
“treatment(s),” and “mental status examination[s].” Records of the
psychiatrist’s conclusions, observations of Husband’s condition, and treatment
decisions that do not report Husband’s communications are not protected by
the psychiatrist/psychologist-patient privilege. M.M., 55 A.3d at 1174;
Gates, 967 A.2d at 1029. The trial court therefore did not err in refusing to
quash the subpoena in its entirety based on the psychiatrist/psychologist-
patient privilege.
The subpoena, however, is not limited to these types of documents.
Rather, it also seeks “[a]ny and all documentation/information of any nature
or kind, whatsoever, including, but not limited to all records, reports, … history
or histories, notes and/or records of consultations.” Such records plainly
would contain communications from Husband to those treating him that are
privileged and protected from disclosure.
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2 The Mental Health Procedures Act (MHPA) protects mental health treatment
records from disclosure and is not limited to patient communications. 50 P.S.
§ 7111(a); M.M., 55 A.3d at 1174; Gates, 967 A.2d at 1029. The MPHA,
however, applies only to involuntary treatment and voluntary inpatient
treatment. 50 P.S. § 7103; M.M., 55 A.3d at 1174. There is no claim that
Husband was involuntarily committed or was an inpatient at the subpoenaed
clinic or that the MPHA applies here.
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There was no consent by Husband to this disclosure; he consistently
objected to the disclosure of his medical records and the subpoena. Husband’s
Responses to Wife’s First Set of Interrogatories, Nos. 72-74; N.T., 5/9/19, at
5, 8-9; Husband’s Objection to Subpoena and Motion for Protective Order ¶¶7-
8; N.T., 12/9/19, at 8-9, 12. Nor was there any waiver. Although he did not
specifically reference 42 Pa.C.S. § 5944 or the psychiatrist/psychologist-
patient privilege, Husband argued to the trial court that he was entitled to a
protective order with respect to these medical records because they were
privileged and protected by privacy limitations on access to medical records.
Husband’s Objection to Subpoena and Motion for Protective Order ¶¶7-8, 15;
N.T., 12/9/19, at 8-9, 12. That is sufficient to preserve his claim that the
records are protected by the psychiatrist/psychologist-patient privilege.
Gates, 967 A.2d at 1030-31 (assertion that mental health records were
privileged medical information was sufficient to preserve claim of statutory
mental health records privilege even though patient did not reference the
specific privilege).
Contrary to Wife’s assertions, there was no evidence of any conduct by
Husband that could constitute waiver of the privilege. While filing an action
that places one’s mental condition at issue or asserting a claim for relief based
on one’s mental condition can constitute a waiver of the
psychiatrist/psychologist-patient privilege, Gormley v. Edgar, 995 A.2d
1197, 1204-06 (Pa. Super. 2010), Husband has not sought relief based on his
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mental condition or filed any action that places his mental condition at issue.
Instead, it is Wife that raised this issue. There was no claim that Husband
sent or gave Wife any record concerning his medical condition. To the
contrary, Wife contended that she accidentally discovered the one medical
record of Husband’s that she has when it fell out of a folder while she was
going through a box that she knew contained Husband’s possessions as well
as her own possessions. N.T., 3/27/19, at 32, 37-38. Wife did not claim that
Husband asked her to go through or look at his belongings that were in the
box nor did she introduce evidence that Husband was the one who put his
belongings in the box with her things.
Because the subpoena’s breadth requires production of 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 not granting a protective order limiting the subpoena to records of
diagnoses, treatment, and observations with any communications by Husband
redacted. 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); Simmons, 719 A.2d at 343-44 (vacating trial court order for
production of records because production of whole file was ordered even
though many documents in file were not privileged).
Husband also argues the Amen Clinic records are protected from
discovery by the right of privacy and the federal Health Insurance Portability
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and Accountability Act of 1996 (HIPAA). While we do not agree that the right
of privacy or HIPAA prohibits disclosure of all of the records sought by the
subpoena, the trial court nonetheless erred in failing to grant a protective
order on this basis limiting the subpoena and use of the subpoenaed records.
Even where there is no statutory privilege, a patient has a right of
privacy under the Pennsylvania Constitution that may limit the court-ordered
disclosure of records of medical treatments and diagnoses that would
otherwise be discoverable. Stenger v. Lehigh Valley Hospital Center, 609
A.2d 796, 800-02 (Pa. 1992); Lykes v. Yates, 77 A.3d 27, 31 (Pa. Super.
2013); Buckman v. Verazin, 54 A.3d 956, 962-64 (Pa. Super. 2012); Jones
v. Faust, 852 A.2d 1201, 1205-06 (Pa. Super. 2004). This right of privacy is
not absolute and medical records may be ordered disclosed where the need
for disclosure outweighs the harm to the patient’s privacy. Stenger, 609 A.2d
at 800-04; Jones, 852 A.2d at 1206. The factors that the court must weigh
to determine whether the right of privacy bars a subpoena or other court-
disclosure of medical records or information include the potential harm to the
patient from the disclosure, the adequacy of safeguards to prevent further
disclosure, the need for the medical records or information, and whether there
is any statutory mandate, public policy, or recognizable public interest that
supports the disclosure. Stenger, 609 A.2d at 801-02; Lykes, 77 A.3d at
31; Buckman, 54 A.3d at 961.
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HIPAA restricts disclosure of health information without the consent of
the patient, but permits such disclosure in litigation in response to a subpoena
or discovery request where notice has been given to the patient and there is
a protective order that prohibits the parties from using or disclosing the health
information for any purpose other than the litigation and requires the return
or destruction of all copies of the health information at the end of the litigation.
45 C.F.R. § 164.512(e)(1)(ii)-(v).
Here, Wife showed a high degree of need for Husband’s medical records
with respect to diagnoses of ADHD or dysthymic disorder prior to the parties’
April 20, 2018 marriage. Her petition for annulment is based on the claim
that Husband misrepresented to her that he did not have those conditions and
that she would not have married him if she had known that he had those
conditions. Husband does not admit that he has either of those conditions
and disputes that the Amen Clinic document on which she bases her claim of
fraud is sufficient to prove that he has been diagnosed with those conditions.
N.T., 3/27/19, at 32-35, 208-09. The harm from disclosure of records limited
to these alleged diagnoses prior to the marriage for use solely in this litigation
is also not unduly great as Wife already has possession of a record that
contains the diagnostic codes for these two conditions.
If the trial court had imposed adequate safeguards to prevent disclosure
outside of the litigation, the balance of interests would permit the subpoenaing
of pre-April 20, 2018 Amen Clinic records with respect to whether Husband
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had ADHD and dysthymic disorder. The record, however, is devoid of any
evidence of safeguards to protect against such further disclosures. It does
not appear that any protective order or confidentiality agreement or order has
been entered that restricts Wife, her attorneys, and any other person receiving
the records or information from the records from disclosing the records or
information outside the litigation and neither party has asserted that such an
order has been entered. Unless such a restriction on use of the medical
records and information obtained by the subpoena is ordered, the harm to
Husband’s right of privacy from permitting the subpoenaing of the records
outweighs Wife’s need for his medical records.3 Compare Stenger, 609 A.2d
at 802 (upholding disclosure of medical information necessary to prove
plaintiff’s claim because restrictions on the information disclosed were
adequate to protect privacy).
In addition, Wife has no substantial need for medical records of
Husband that were created after April 20, 2018 or that concern diagnoses
other than the two conditions that are the basis of her annulment claim. Any
fraudulent statements by Husband that induced Wife to marry him had to
occur before the marriage and therefore only evidence of Husband’s medical
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3 While it does not appear that Husband specifically sought a restriction on
use of the records, he raised his privacy rights and the HIPAA restrictions,
both of which require consideration whether there is a restriction on further
disclosure. The issue of whether adequate protections have been provided is
therefore properly before this Court.
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condition prior the April 20, 2018 can be relevant. Only misrepresentations
concerning ADHD and dysthymic disorder have been asserted by Wife as the
basis for the annulment petition. The possibility that Wife might discover
additional misrepresentations on a fishing expedition through Husband’s
medical records does not rise to a substantial need that can outweigh his
privacy rights. Moreover, the adverse effect on Husband’s privacy is greater
because Wife is not already aware of any conditions other than possible ADHD
and dysthymic disorder. There is no statute, public policy, or public interest
militating in favor of disclosing medical records of a party who did not choose
to place his medical condition in issue or in favor of disclosure of depression,
anxiety, or other psychiatric disorders, psychological disorders, mental or
nervous conditions. Rather, the sole need for Husband’s medical records is
Wife’s private interest in proving her fraud claim. There is therefore no need
for post-April 20, 2018 records or records concerning diagnoses other than
ADHD and dysthymic disorder that can outweigh Husband’s right of privacy,
even if a confidentiality order is imposed.
Because the subpoena included documents and information protected
by the psychiatrist/psychologist-patient privilege and Husband’s constitutional
right of privacy and no protective order limiting use of the records was
entered, we reverse the trial court’s order denying Husband’s motion for a
protective order. We remand this case with instructions that the trial court
grant a protective order that permits Wife to subpoena from the Amen Clinic
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only records prior to April 20, 2018 concerning diagnoses of ADHD or
dysthymic disorder, with any communications by Husband redacted, and
restricts the disclosure of such records and any information obtained from
them outside this annulment proceeding.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/20
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