in Re Kyle McAdams, for the Estate of Michael Cameron Hodges, M.D., and M. Cameron Hodges, M.D., P.L.L.C., Relators

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-18-00345-CV
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IN RE KYLE MCADAMS, EXECUTOR FOR THE ESTATE OF MICHAEL CAMERON
HODGES, M.D., DECEASED AND M. CAMERON HODGES, M.D., P.L.L.C., RELATORS
Original Proceeding Arising Out of Proceedings in the 181st District Court
Potter County, Texas
Trial Court No. 107,219-B; Honorable John B. Board, Presiding Judge
November 29, 2018
ORDER ON MOTION FOR REHEARING
AND MOTION FOR EN BANC RECONSIDERATION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This court denied Relators’ Petition for Writ of Mandamus on October 29, 2018.1
Relators have now filed their Motion for Rehearing or, Alternatively, Motion for En Banc
Reconsideration contending that the “extraordinary circumstances” of this case require
that we withdraw our prior opinion and in its place issue a new opinion requiring
1 In re Kyle McAdams, et al., No. 07-18-00345-CV, 2018 Tex. App. LEXIS 8829 (Tex. App.—
Amarillo Oct. 29, 2018, orig. proceeding) (mem. op.).
Respondent, the Honorable John B. Board, to vacate his order for the limited production
of Dr. Hodges’s personal medical and mental health records. For a more thorough
discussion of the relevant facts and issues, we refer the reader to our prior opinion.
By three issues, Relators contend this court erred by (1) utilizing an interpretation
of Rules 509 and 510 of the Texas Rules of Evidence that was rejected by the Texas
Supreme Court in R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) (orig. proceeding), (2)
using an overly broad definition of relevance, and (3) failing to consider the policy
ramifications of allowing discovery into the medical and mental health records of a
physician in a medical malpractice case. Having considered Relators’ motion and the
response of Real Parties in Interest, we deny the motion for rehearing and motion for en
banc reconsideration.
With respect to Rules 509 and 510 and the scope of the definition of relevance, all
parties agree the deciding issue in this proceeding is whether Real Parties in Interest (as
Plaintiffs) are relying on the medical or mental health condition of Dr. Hodges as a part of
their claim. Relators contend this court misinterpreted Ramirez because we first
determined whether the questioned records were “relevant” to that determination before
we determined if they were a “part” of the claims of Real Parties in Interest. In making
their argument, Relators parse the language of Ramirez to ultimately contend that in order
to be a “part” of a party’s claim or defense, a patient’s medical or mental health condition
must be “central” to that claim or defense and it must be an “ultimate” issue. We reject
that narrow interpretation. The Supreme Court, in Ramirez, stated that in order for an
exception to the physician-patient privilege to apply, the “scope of the exception should
be tied in a meaningful way to the legal consequences of the claim or defense.” Id. at
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842 (rejecting an interpretation that relies on relevance alone). In doing so, the Supreme
Court emphasized that there must be something more than a tangential connection
between the records being sought and the claim or defense of the party seeking to invoke
the exception. Because this court did determine that there was a “meaningful” connection
between the claim of Real Parties in Interest and the information being sought in our
analysis of the applicability of the exceptions to Rule 509, Physician-Patient Privilege,
and Rule 510, Mental Health Information Privilege, we overrule Relators’ first two issues.
With respect to the contention that this court failed to consider the policy
ramifications of allowing discovery into the medical and mental health records of a
physician in a medical malpractice case, we remind Relators that it is not the function of
this court to make policy decisions. Those decisions are better left to the Texas
Legislature in enacting statutes and in delegating the authority to issue rules, and the
Texas Supreme Court in the interpretation of those matters. As such, Relators’ third issue
is overruled.
CONCLUSION
Relators’ Motion for Rehearing and Motion for En Banc Reconsideration are
denied.
Patrick A. Pirtle
Justice
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