Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-16-1996

Hahnemann Univ. Hosp. v. Edgar
Precedential or Non-Precedential:

Docket 95-1667




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                            No. 95-1667


                 HAHNEMANN UNIVERSITY HOSPITAL,

                                          Petitioner

                                v.

            CHARLES C. EDGAR and LAURA D.G. EDGAR,
           conservators of the person and estate of
              SHANE EDGAR, and CHARLES C. EDGAR
       and LAURA D.G. EDGAR, in their own rights,
                                       Respondents

              The Honorable Raymond J. Broderick,
                 United States District Judge,

                                          Nominal Respondent



    On Petition for a Writ of Mandamus to the United States
    District Court for the Eastern District of Pennsylvania
           (Related to D.C. Civil Action No. 94-3515)


                    Argued November 30, 1995

       BEFORE:   GREENBERG and COWEN, Circuit Judges, and
                                           0
                     PARELL, District Judge

                  (Filed:     January 16, l996)


                                 Sharon M. Reiss (argued)
                                 Kimberly A. Cummings
                                 Sheila A. Haren
                                 Post & Schell, P.C.
                                 19th Floor
                                 1800 J.F.K. Boulevard

0
 Honorable Mary Little Parell, Judge of the United States
District Court for the District of New Jersey, sitting by
                       designation.


                                1
                                   Philadelphia, PA   19103

                                          Attorneys for Petitioner

                                   Fred T. Magaziner (argued)
                                   Jill L. Russin
                                   Dechert, Price & Rhoads
                                   1717 Arch Street
                                   4000 Bell Atlantic Tower
                                   Philadelphia, PA 19103

                                          Attorneys for Respondents




                      OPINION OF THE COURT




GREENBERG, Circuit Judge.
          Respondents Charles C. Edgar and Laura D.G. Edgar sued

Hahnemann University Hospital as conservators of the person and

estate of their daughter, Shane Edgar, and in their own right,

alleging that the hospital acted with gross negligence and

willful misconduct when it failed to protect Shane Edgar from

being raped forcibly by two male patients.0   During discovery,

the Edgars requested the patient charts of the two male patients

who allegedly raped Shane Edgar.    The hospital objected on the

grounds that the documents were confidential and that it could

not comply with the request without violating the Pennsylvania

Mental Health Procedures Act, Pa. Stat. Ann. tit. 50, § 7101, et


0
 At oral argument we asked counsel for the Edgars about the
prudence of including Shane Edgar's name in unsealed court
documents, in light of the nature of the allegations in the
underlying case. The attorney responded that the Edgars had
chosen not to have their names redacted from court proceedings.
For this reason, we include names in this opinion.


                                2
seq. (Purdon's Supp. 1995) ("MHPA").     The district court entered

a series of orders requiring Hahnemann to provide the court with

copies of all documents in its possession concerning the two male

patients for an in camera review, with possible disclosure of the

information to the parties, their counsel, and their experts, for

use at trial.     Hahnemann filed a petition for a writ of mandamus

in this court, seeking immediate review of the district court's

orders.   We will grant Hahnemann's petition for mandamus.



            I.   FACTUAL BACKGROUND AND PROCEDURAL HISTORY

            On March 19, 1993, Shane Edgar was admitted to the

Psychiatric Medical Care Unit of Hahnemann University Hospital in

Philadelphia, Pennsylvania, for observation and evaluation.      That

same day, an involuntarily committed male psychiatric patient

sexually harassed Shane; Hahnemann allegedly became aware of the

incident.    That night, the same male patient, along with another

involuntarily committed male psychiatric patient, raped Shane in

the bathroom of her room.0

            Charles and Laura Edgar filed an action on behalf of

their daughter and themselves against Hahnemann, alleging that

the hospital negligently failed to protect their daughter from

the sexual assault.    Because notice of the danger may be germane

to their cause of action under Pennsylvania law, the Edgars

sought discovery from Hahnemann of any information that would


0
 We recite the facts as the Edgars allege them. It should be
understood, therefore, that our recitation does not constitute
findings.


                                  3
demonstrate that it was on notice of the two male patients'

propensity for sexual assault.   Specifically, they sought the

patient charts of the two men.   The hospital objected on the

grounds that the documents were confidential and that it could

not comply with the request without violating the MHPA.    After

the Edgars moved for sanctions, the district court held a

conference in an attempt to resolve the dispute.    On April 19,

1995, the district court denied the Edgars' motion and directed

that if the dispute was not resolved they could file a more

specific set of requests for documents, limited by the MHPA.

          After a final pretrial conference held on May 4, 1995,

the Edgars filed a motion to compel the production of various

documents, including the patient charts of the two male patients

and/or entries on their charts made by a mental health worker,

and the incident reports regarding the rape.    Again, Hahnemann

objected on the grounds that the confidentiality of the documents

required protection under the MHPA.    At the same time, the

hospital pointed out that redacting the patients' names from the

charts would not protect the documents' confidentiality because

the Edgars had information that would allow them to deduce which

report belonged to which patient.

          On May 11, 1995, the district court, pursuant to

section 111 of the MHPA, Pa. Stat. Ann. tit. 50, § 7111, denied

the Edgars' request for the records.    The court also denied the

motion to compel the notes and chart entries of the mental health

technician on duty the night of the attack.    The court did,




                                 4
however, order Hahnemann to produce any "incident reports"

created as a result of the attack, and further ordered that:
          In the event that the only incident reports
          prepared by [the mental health technician]
          are contained in one or both of the treatment
          records of the male patients involved in the
          subject incident, the defendant shall . . .
          submit the treatment records of these two
          patients to the Court, in camera, for a
          determination as to whether § 7111 of the
          MHPA prohibits the discovery of said reports.

App. at 133.   Hahnemann later informed the court by letter that

it had disclosed all "incident reports" to the Edgars, and that

an in camera inspection would not be necessary because the mental
health technician involved had not prepared such a report.

          The Edgars filed a motion for reconsideration of the

May 11 order, emphasizing again that they were seeking

information as to whether the hospital should be held liable for

the rape and that they would be willing to accept documents

edited so as to obscure the identity of the patients.    In

response, Hahnemann argued that the MHPA was so broad that even

disclosure of the records to the district court for an in camera
inspection was prohibited.   Further, it reiterated its argument

that "[the Edgars] are in possession of information regarding

these two patients which would unfailingly allow them to identify

which records pertain to which man, regardless of redaction."

App. at 167.   On July 10, 1995, the district court entered an

order stating that its May 11, 1995 order denying the Edgars

access to the patient charts remained in full force and effect

and requiring the parties to appear for a conference in chambers

on July 17, 1995, to discuss the following:


                                5
           [W]hether, in the interest of justice,
           methods might be employed to maintain the
           confidentiality of documents covered by §7111
           of the MHPA in the event the Court should
           order documents concerning the treatment of
           the two male patients who allegedly attacked
           plaintiff Shane Edgar turned over to the
           Court for a determination as to whether said
           documents contain any matter which should
           have put the defendant on notice.

Edgar v. Hahnemann Univ. Hosp., No. 94-3515 (E.D. Pa. July 10,
1995).   On the same day, the district court entered an order

clarifying the meaning of "incident reports" and reiterating its

requirement for the production of such reports, including the in

camera inspection of the patients' records if such reports were

included therein.

          At the July 17, 1995 conference, the court decided that

the hospital should deliver to it copies of all documents

regarding the two male patients so that it could determine

whether they contained information bearing on the liability of

the hospital.   The court thereafter directed the parties to

submit proposed orders providing for the court to view the

documents in camera.   In response to the court's request,

Hahnemann supplied it with a proposed order requiring disclosure

of the medical records in camera but also containing

certification language pursuant to 28 U.S.C. § 1292(b) and Fed.

R. App. P. 5, designed to allow immediate appeal from an

interlocutory order.   The court then entered an order on July 18,

1995, which did not adopt the section 1292(b) certification

language but read as follows:
          Within five days . . . Hahnemann University
          Hospital shall deliver to the court copies of
          all documents (including medical and


                                6
          psychiatric records as well as documents
          relating to involuntary commitment) in its
          possession concerning each of the two male
          patients who allegedly attacked Shane Edgar
          on March 19, 1993. The Court shall make
          every effort to maintain the confidentiality
          of the documents as prescribed by 50 P.S.
          §7111, 42 P.S. § 5944, 42 P.S. § 5929 and 28
          Pa. Admin. Code § 103.22(b)(4) and shall
          review the documents in camera for the sole
          purpose of determining whether the documents
          contain information relevant to the issue of
          the standard of care the hospital owed Shane
          Edgar to insure her safety and well being
          while she was a patient. In the event the
          court determines that these documents do
          contain information relevant to the issue of
          the standard of care the hospital owed Shane
          Edgar to insure her safety and well being
          while she was a patient, the Court will
          direct counsel to make an effort to agree on
          a procedure to be employed during the trial
          of this case which will maintain the
          confidentiality of documents and will permit
          the use of the information. . . .

Edgar v. Hahnemann Univ. Hosp., No. 94-3515, slip op. at 2 (E.D.
Pa. July 18, 1995).   When Hahnemann failed to comply with this

order, the Edgars moved the court to hold it in contempt.

          On August 8, 1995, Hahnemann filed a petition for a

writ of mandamus in this court under the All Writs Act, 28 U.S.C.

§ 1651(a), seeking to compel the district court to withdraw its

July 10 and 18, 1995 orders.   Two days later, Hahnemann asked the

district court to stay all proceedings before it pending our

disposition of the mandamus petition.   While the request for a

stay was pending, the district court granted the Edgars'

application to hold Hahnemann in civil contempt for not providing

the district court with the contested medical records as ordered.

Thus, it entered an order on August 14, 1995, imposing a coercive



                                7
fine on Hahnemann of $1,000.00 per day for each day after August

16, 1995, that it did not comply with the July 18, 1995 order.

The district court then denied Hahnemann's request for a stay on

August 15, 1995, without prejudice to Hahnemann renewing the

request in the event that we grant the petition for mandamus.      In

denying the request for a stay, the court observed that it had

not issued a formal ruling regarding certification under section

1292(b).0

            On August 28, 1995, Hahnemann filed a "Supplemental

Petition . . . for Writ of Mandamus" in this court requesting

that we issue a stay of the coercive fine pending resolution of

its petition on the merits.      On September 6, 1995, we entered an

order staying the coercive fine effective August 28, 1995, when

the supplemental petition was filed.



                           II.    DISCUSSION

            The district court has jurisdiction over the Edgars'

diversity of citizenship action pursuant to 28 U.S.C. § 1332. Our

jurisdiction is invoked pursuant to the All Writs Act, which

provides that federal courts "may issue all writs necessary or
            0
             [A]lthough para. 9 of [Hahnemann's Petition
            for Stay of the Proceedings] asserts `in
            releasing its July 19, 1995 Order, this Court
            declined petitioning defendant's request that
            these issues be certified for immediate
            appeal pursuant to the procedure set forth at
            28 U.S.C. § 1292(b)', the Court has not
            issued any ruling in this case concerning
            certification pursuant to 28 U.S.C. §1292(b).

Edgar v. Hahnemann Univ. Hosp., No. 94-3515 (E.D. Pa. Aug. 15,
1995).


                                   8
appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law."   28 U.S.C.

§1651(a).   As the district court has diversity jurisdiction, this

court potentially has jurisdiction over the case and therefore

has jurisdiction under the All Writs Act to consider Hahnemann's

petition.   Glenmede Trust Co. v. Thompson, 

, 482 (3d

Cir. 1995) (citing Westinghouse v. Republic of the Philippines,

, 1422 (3d Cir. 1991)).

            Hahnemann's petition contends that the district court's

orders requiring it to submit for in camera review the patient

charts of the two male patients who allegedly raped Shane Edgar

would require it to violate the MHPA, as well as Pennsylvania's

statutory psychotherapist-patient privilege, 42 Pa. Cons. Stat.

Ann. § 5944 (Purdon's Supp. 1995), the Pennsylvania Patient's

Bill of Rights, 28 Pa. Code. Ch. 103 (1983), and the

constitutional rights of privacy of the male patients.     Our

inquiry requires us to decide whether the writ of mandamus is the

appropriate means of relief for the hospital to pursue and, if it

is, to examine whether the proposed in camera review of documents

is permissible.   The first issue, of course, implicates federal

procedural law, and the parties correctly agree that the second

issue should be decided under state law.   See Fed. R. Evid. 501.

Because we hold that mandamus is appropriate in this case and

that the MHPA as a matter of law prevents the disclosure of the

documents relating to the male patients' psychiatric care, we

will grant the petition for mandamus, but will not reach




                                 9
Hahnemann's remaining reasons for contending that we should issue

the writ.



                     A.   The Procedural Question

            The writ of mandamus is a drastic remedy that a court

should grant only in extraordinary circumstances in response to

an act "amounting to a judicial `usurpation of power.'"     Will v.

United States, 

, 95, 

, 273 (1967) (quoting

De Beers Consol. Mines, Ltd. v. United States, 

, 217,

, 1132 (1945)); Kerr v. United States Dist. Court,

, 402, 

, 2123-24 (1976).     Given its

drastic nature, a writ of mandamus should not be issued where

relief may be obtained through an ordinary appeal.    Bankers Life

& Casualty Co. v. Holland, 

, 383, 

, 148

(1953) (citing Ex parte Fahey, 

, 259-60, 

, 1559 (1947)); In re Sch. Asbestos Litig., 

, 772

(3d Cir. 1992); Oracare DPO, Inc. v. Merin, 

, 522-23

(3d Cir. 1992).   Thus, in addition to the jurisdictional

prerequisite inherent in the language of section 1651(a), two

additional prerequisites for issuance of a writ are: "(1) that

petitioner have no other `adequate means to attain the [desired]

relief,' and (2) that petitioner meet its burden of showing that

its right to the writ is `clear and indisputable.'"     Haines v.

Liggett Group Inc., 

, 89 (3d Cir. 1992) (quoting 

, 96 S.Ct. at 2124, and citing DeMasi v. Weiss,

, 117 (3d Cir. 1982)); Communication Workers v.

American Tel. & Tel. Co., 

, 208 (3d Cir. 1991).       Even


                                  10
when these prerequisites are met, issuance of the writ is largely

discretionary, bearing in mind "`the unfortunate consequence of

making the . . . judge a litigant,'" 

, 96

S.Ct. at 2124, and the highly disfavored effect of piecemeal

appellate review.    

; DeMasi v. 

.

          Discovery orders are not "final" for purposes of 28

U.S.C. § 1291 and, therefore, ordinarily are not appealable until

after there is a final judgment.      

(citing

Borden Co. v. Sylk, 

, 845 (3d Cir. 1969)).

Furthermore, we do not permit parties to litigation to circumvent

the final judgment rule simply by resisting discovery orders and

then appealing from an eventual finding of civil contempt.        See,

generally, 

.     To be sure, appeal after

final judgment constitutes "other means" of relief.     Where a

privilege is asserted, however, such relief usually is not

"adequate."    As we held in Bogosian v. Gulf Oil Corp., 

(3d Cir. 1984), "[w]hen a district court orders production of

information over a litigant's claim of a privilege not to

disclose, appeal after a final decision is an inadequate remedy .

. . for compliance with the production orders complained of

destroys the right sought to be protected."     

(citations omitted).   Several of our cases since Bogosian have

reaffirmed this basic proposition.     See, generally, Glenmede

Trust 

; Rhone-Poulenc Rorer Inc. v. Home

Indem. Co., 

, 861 (3d Cir. 1984); 

.


                                 11
            Respondents and nominal respondent argue, however, that

issuing a writ of mandamus would be inappropriate at this point

because Hahnemann never formally petitioned the district court

for certification under 28 U.S.C. § 1292(b).0    Therefore,

respondents contend there remains a viable and "adequate"

alternative to the issuance of an extraordinary writ.    We

disagree.     Hahnemann included certification language in the

proposed order allowing in camera inspection that it submitted to

the district court.    Nevertheless, the district court did not

include that language in the order it entered.    While it is true

that, "[w]here interlocutory appeal seems a practical but untried

avenue, we will ordinarily deny a petition for mandamus," In re

Sch. Asbestos 

, we also have stated that

"neither Federal Rule of Appellate Procedure 21 nor any decision,

Rule, or Internal Operating Procedure of this court has codified"

a requirement to seek section 1292(b) certification before filing

a petition for mandamus.    

  Furthermore, although

Hahnemann did not formally move the district court for a section

1292(b) certification, it is clear that it did so at least

informally.

            We recognize that, in a particular case, it might be

appropriate to exercise our discretion to deny mandamus because a


0
 In their answer to the petition, the Edgars raised this
objection, but they did not repeat it in their subsequently filed
brief and, at oral argument, appeared to abandon the objection.
We nevertheless address the point because (1) it is appropriate
to do so in light of the standards governing applications for
mandamus and (2) the nominal respondent has filed an answer
raising the point.

                                  12
formal application for certification has not been made under

section 1292(b).   Yet where, as here, at least an informal

application has been made and not granted, we believe it can be

appropriate to grant mandamus, especially since we never have

established an "inflexible pleading requirement" regarding

section 1292(b) certification.   

see Alexander v.

Primerica Holdings, Inc., 

, 163 n.8 (3d Cir. 1993).0

Hahnemann's desired relief of maintaining the confidentiality and

privilege of the medical records of the two male patients could

be lost forever unless we issue a writ of mandamus.   See 

(writ of mandamus is only means of relief from

order requiring production of documents allegedly subject to

attorney-client privilege).   We therefore hold that because

Hahnemann has no other adequate means to attain its desired

relief, the first requirement for mandamus has been satisfied.

          In addressing the merits of this case in an effort to

determine if Hahnemann's right to a writ of mandamus is "clear

and indisputable," 

, we first must specify

exactly which order(s) of the district court are subject to

0
 We also point out that section 1292(b) permits a district court
to certify an order so that a court of appeals may grant leave to
appeal only if the district court concludes that the "order
involves a controlling question of law . . . and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation . . . ." It is
conceivable that mandamus might be appropriate in a case not
satisfying the section 1292(b) certification standard. See
Westinghouse v. Republic of the 

n.6; Cipollone v. Liggett Group, Inc., 

, 1118 n.14
(3d Cir. 1986). Thus, we have not imposed an inflexible
requirement that certification be sought and, if granted, leave
to appeal be sought before a writ of mandamus may issue.


                                 13
mandamus.   We have decided that only the July 10 and 18, 1995

orders requiring Hahnemann to produce the treatment records of

the two male patients are subject to mandamus.    Although

Hahnemann has indicated in its petitions and briefs that it also

challenges the August 14 and 15, 1995 orders respectively holding

it in contempt and denying its motion for a stay, we find that

those orders are not appropriate for review by mandamus.      To the

extent that Hahnemann seeks relief from the August 15 order

denying Hahnemann's motion for a stay, the district court's order

is not reviewable by mandamus because the court indicated that it

would permit a renewed motion to stay (or vacate) in the event

that this court grants Hahnemann's writ on the merits.       As to the

August 14 contempt order, Hahnemann has a possible alternative

remedy that renders our issuance of a writ inappropriate:

Hahnemann can appeal the contempt order after final judgment if

it has paid the fines incurred between August 16 and August 28,

1995 (the latter being the date of our stay).    Thus, we review on

the merits only the district court's orders of July 10 and July

18 requiring the production for in camera review of the patients'

treatment charts.



                 B.   The Scope of the MHPA Privilege

            As we stated above, Hahnemann claims that the MHPA

forbids it from producing the records of the patients who

allegedly raped Shane Edgar to the district court.      The Act

"establishes rights and procedures for all involuntary treatment

of mentally ill persons, whether inpatient or outpatient, and for


                                  14
all voluntary inpatient treatment of mentally ill persons."     Pa.

Stat. Ann. tit. 50, § 7103.   Section 111 of the MHPA provides as

follows:
                All documents concerning persons in
           treatment shall be kept confidential and,
           without the person's written consent, may not
           be released or their contents disclosed to
           anyone except:

                (1) those engaged in providing treatment
           for the person;
                (2) the county administrator, pursuant
           to section 110;
                (3) a court in the course of legal
           proceedings authorized by this act; and
                (4) pursuant to Federal rules, statutes
           and regulations governing disclosure of
           patient information where treatment is
           undertaken in a Federal agency.

                In no event, however, shall privileged
           communications, whether written or oral, be
           disclosed to anyone without such written
           consent. This shall not restrict the
           collection and analysis of clinical or
           statistical data by the department, the
           county administrator or the facility so long
           as the use and dissemination of such data
           does not identify individual patients. . . .

Pa. Stat. Ann. tit. 50, § 7111.     The purpose of the MHPA is to

further the policy of the Commonwealth of Pennsylvania "to seek

to assure the availability of adequate treatment to persons who

are mentally ill."   

   In fact, the Pennsylvania

Supreme Court has given the patient's right to confidentiality of

psychiatric records constitutional status.     See In re June 1979

Allegheny County Investigating Grand Jury, 

, 77-78

(Pa. 1980) (but finding that public policy reasons may allow

constitutionally protected records to be subpoenaed where

appropriate protections against further disclosure are in place);


                                   15
In re B., 

, 425 (Pa. 1978).     The Act therefore is

strictly construed.   In re Roy, 

, 1173 (Pa. Super.

Ct. 1993), appeal denied, 

(Pa. 1994); Commonwealth v.

Moyer, 

, 1179 (Pa. Super. Ct. 1991), appeal denied,

(Pa. 1992).

            Section 111 of the MHPA does not create a conventional

privilege protecting communications only if they satisfy certain

elements.   See In re June 1979 Allegheny County Investigating

Grand 

.    On the contrary, section 111 is

much broader in scope, covering any document that "concern[s]

persons in treatment."     Pa. Stat. Ann. tit. 50, § 7111.    The

statute requires that such documents "shall be kept confidential

and, without the person's written consent, may not be released or

their contents disclosed to anyone except" in four listed

situations, all having to do with psychiatric care.     

indicates that disclosure of treatment records is

forbidden unless one of the statutory exceptions applies.

            Indeed, it appears that every Pennsylvania court in

determining the applicability of section 7111 first has examined

whether the situation before it constituted one of the listed

exceptions.    See, e.g., Johnsonbaugh v. Dep't of Public Welfare,

, 26 (Pa. Commw. Ct. 1995) ("Petitioner has failed to

establish that any of the statutory exceptions apply[.]").      The

only exception that could be applied in the case before us is the

one contained in subparagraph (3), allowing disclosure of

confidential documents to "a court in the course of legal

proceedings authorized by this act."    Pa. Stat. Ann. tit. 50,


                                  16
§7111.   However, this exception has been held to include only

involuntary and voluntary mental health commitment proceedings,

as those are the only legal proceedings authorized by the Act. In

re 

("[A] patient's inpatient mental

health records may be used by a court only when the legal

proceedings being conducted are within the framework of the MHPA,

that is, involuntary and voluntary mental health commitment

proceedings.") (quoting Commonwealth v. 

).

           When none of the four exceptions to section 7111 of the

MHPA applies, the Pennsylvania state courts consistently have

denied requests for production of documents that the statutory

privilege covers.   For example, in Commonwealth v. Moyer, 

, a case stemming from repeated sexual assaults of a

boy, the Superior Court of Pennsylvania overturned the

defendant's conviction on the ground that the trial court erred

in admitting his mental health treatment records into evidence

because they were privileged under the MHPA.   In Leonard v.

Latrobe Area Hosp., 

(Pa. Super. Ct. 1988),

plaintiffs' mother was killed by her husband, and they brought a

negligence action against the hospital that treated him for a

psychiatric disorder.   The Superior Court reaffirmed that under

the MHPA the hospital could not disclose the patient's records.

           In Ferrara v. Horsham Clinic, 

(E.D. Pa.

June 3, 1994), plaintiff brought a wrongful death and survival

action against a clinic in which her daughter had committed

suicide.   The district court denied plaintiff's motion to compel

production of the treatment notes concerning a patient who had an


                                17
altercation with her daughter.    

    The court held that

these documents were privileged under the MHPA and could not be

disclosed.   

v. Commonwealth, 

(Pa.

Commw. Ct. 1982), a hospital employee fired for allegedly

punching a patient subpoenaed the patient's records for his

hearing before the State Civil Service Commission to challenge

the dismissal.     The Commonwealth Court affirmed the Commission's

quashing of the subpoena duces tecum on the ground that the

records were privileged under the MHPA.

          In fact, with the exception of cases in which the

statutory privilege has been waived by the patient, e.g., Sprague

v. Walter, 

, 910-11 (Pa. Super. Ct. 1995), it seems

that a Pennsylvania court has found in only one case that the

protection conferred by section 7111 of the MHPA should give way.

In Fewell v. Besner, 

(Pa. Super. Ct. 1995), the

plaintiff was committed involuntarily pursuant to the MHPA after

becoming severely depressed over her four-month-old son's death.

While committed she confessed to the defendant, her therapist,

that she had suffocated her son.       

  Believing

(erroneously) that state law obligated him to report child abuse,

the therapist informed the coroner of plaintiff's confession and

testified at her criminal trial, where she was found guilty.0

0
 On appeal from her conviction, the Superior Court found that the
therapist's compelled testimony at trial violated the state's
psychotherapist-patient privilege, 42 Pa. Cons. Stat. Ann. §5944,
but determined that the error was harmless. Commonwealth v.
Fewell, 

, 1115 (Pa. Super. Ct. 1995). The court was
not presented with the issue involved in the civil suit (that the
immunity provisions trumped the statutory confidentiality
requirements).


                                  18
Commonwealth v. Fewell, 

, 1115 (Pa. Super. Ct.

1995).   Plaintiff then sued the therapist for violating section

111 of the MHPA but the trial court granted the therapist's

motion to dismiss based on provisions in the mandatory reporting

law granting immunity from suit for those who acted in good faith

in making a report.   On appeal, plaintiff claimed that the

immunity provision was in conflict with the confidentiality

requirements of section 111 of the MHPA.   The Superior Court

disagreed.   It held that the privilege must yield to the immunity

provisions, noting the strong policy interest evinced by the

statutes requiring the reporting of child abuse.   Thus, the court

essentially held that a therapist who learns of child abuse

during therapy and is compelled to testify at a criminal trial

will not be permitted to invoke the MHPA confidentiality

privilege, given the competing statutory interests in the

reporting of child abuse, and the statutory immunity from suit

granted to those making such reports.

           The cases we have cited make it clear that the MHPA is

strictly construed by the Pennsylvania courts.   In the absence of

a waiver of the privilege, in only one instance has a court held

that a confidential document should be produced, and that case

involved the competing statutory interests of child abuse

reporting and good faith immunity from suit.   No such competing

statutory interests apply here, and in any event it is not the

place of this court to create judicial exceptions to a

Pennsylvania statute that has been strictly construed by the

state's courts.   See Leo v. Kerr-McGee Chem. Corp., 

,


                                19
101 (3d Cir. 1994) (federal court in diversity case ought not to

stretch state common law).

            In spite of the state courts' strict interpretation of

the MHPA, however, the Edgars argue that Pennsylvania could not

possibly have intended to require confidentiality under the

circumstances presented in this case.   Additionally, they

complain that the policy the statute seeks to promote --

encouraging treatment by ensuring confidentiality -- is not

advanced by strict adherence to the statutory language of the

privilege in this case.   Again, while the Edgars may raise

plausible policy arguments against the legislative wording of the

statute, we are obliged to follow the statute as written and

interpreted by the Pennsylvania courts.   The MHPA presents an

absolute confidentiality privilege against the disclosure of

documents that "concern[] persons in treatment."    The

Pennsylvania courts have interpreted the wording of the statute

strictly.    While in a particular case, a litigant may challenge

documents for which protection is claimed as not meeting the

"concerning persons in treatment" standard, that situation is

clearly not present here, since the documents we are considering

are the treatment records of the two men accused of raping Shane

Edgar.0

0
 We doubt that a hospital can make an unreviewable ex parte
determination that a document concerns a person in treatment and
thereby refuse to disclose documents for an in camera review,
intended in the first instance to determine if the document is
confidential according to section 111. If a hospital could
sustain that position, it would be able to withhold documents
that might not reasonably be covered by the section. We,
however, are not concerned with a situation of that nature here.

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          Further, unlike conventional privileges that apply only

to certain communications, section 111 of the MHPA creates a much

broader protection, forbidding the disclosure of any document

"concerning persons in treatment" regardless of the contents of

that document.     Thus, it is possible that documents receiving

protection under the MHPA may not contain material that would be

privileged under any other statutory or common-law privilege.

Nevertheless, as long as the documents concern persons in

inpatient psychiatric treatment (voluntary or involuntary),

section 111 of the MHPA absolutely forbids their disclosure

except in the enumerated circumstances.0       The in camera

inspection of such documents by the district court in this case

does not fall within one of those exceptions.       We have no further

inquiry to make.



                           III.   CONCLUSION

          We therefore hold that Hahnemann's right to a writ of

mandamus is clear and indisputable, and that the district court

exceeded its authority in compelling the hospital to produce the

charts of the two male patients.        Consequently, we will grant the

writ of mandamus and direct the district court to vacate the July

10 and 18, 1995 orders compelling production of the patients'

records for in camera inspection and possible disclosure.


0
 As we have indicated, the MHPA applies to "all involuntary
treatment of mentally ill persons, whether inpatient or
outpatient, and [to] all voluntary inpatient treatment of
mentally ill persons." Pa. Stat. Ann. tit. 50, § 7103. We are
not concerned here with tortious conduct of outpatients.

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However, we will deny Hahnemann's supplemental petition for a

writ of mandamus on the issues of the petition for a stay of the

district court proceedings and the district court's contempt

order.   The parties shall bear their own costs on these mandamus

proceedings.




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