William J. Boyce, Justice.
Relator is Amber Turney. Real Parties-in-Interest are Houston Motor Speedway Corp. d/b/a Houston Motorsports Park Houston Speedway Acquisition, LLC, John Thigpen, and Dean Baker (referred to collectively as the "Motor Speedway Defendants"). This suit arises from the death of David Minx, Sr. ("Decedent") in a single-vehicle collision while he was driving on a race track owned or operated by the Motor Speedway Defendants. Among other defenses, the Motor Speedway Defendants assert that the collision occurred because Decedent had an enlarged heart and suffered a heart attack while driving on the track at a high rate of speed.
On December 9, 2016, the predecessor judge of the 61st District Court in Harris County ordered relator to sign and return a HIPAA medical authorization permitting the Motor Speedway Defendants to obtain Decedent's medical records for the five years prior to his death. The predecessor judge denied relator's motion to quash the Motor Speedway Defendants' depositions on written questions and subpoenas duces tecum, which requested Decedent's medical service providers to produce all of Decedent's medical records.
Relator, Individually and as Representative of Decedent, filed a petition for writ of mandamus in this court on December 15, 2016. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. Relator argues that Decedent's medical records are protected by the physician-patient privilege, and therefore asks this court to compel the trial judge to: (1) vacate the Medical Authorization Order, and (2) to quash the Motor Speedway Defendants' depositions on written questions and subpoenas duces tecum. Alternatively, relator asks that we compel the trial judge to conduct an in camera review of Decedent's medical records to prevent the disclosure of privileged records.
We abated the mandamus proceeding to allow the Honorable Fredericka Phillips, who became judge of the 61st District Court on January 1, 2017, to consider all issues and motions addressed in the Medical Authorization Order. On February 15, 2017, relator filed a motion for Judge Phillips to reconsider the Medical Authorization Order and the denial of relator's objections to the depositions and subpoenas, motion to quash, and motion for protective order. On March 15, 2017, Judge Phillips denied the motion to reconsider. Accordingly, we proceed with considering relator's petition for writ of mandamus.
Decedent's medical records are protected by the physician-patient privilege to the extent that they contain confidential communications between a physician and the patient related to any services the physician rendered or contain information regarding the patient's identity, diagnosis,
The Motor Speedway Defendants served depositions on written questions and subpoenas duces tecum on 12 medical service providers or pharmacies requesting the production of all medical and billing records for any medical treatment received by Decedent.
Relator filed objections to the depositions and subpoenas, a motion to quash, and a motion for protective order. The Motor Speedway Defendants then filed a motion to compel relator to provide them with a signed medical authorization permitting the release of Decedent's medical records, and a response requesting that the trial court deny relator's objections, motion to quash, and motion for protective order.
At the December 9, 2016 hearing of these motions, the trial court orally denied relator's objections to the depositions and subpoenas, motion to quash, and motion for protective order. The trial court also signed the Medical Authorization Order, which orders relator to sign and return a HIPAA medical authorization permitting the Motor Speedway Defendants to obtain of Decedent's medical records for the five years prior to his death.
To obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The appellate court reviews the trial court's application of the law de novo. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). The relator must establish that the trial court could reasonably have reached only one conclusion. Id.
While the scope of discovery is generally within the trial court's discretion, the trial court must impose reasonable discovery limits. In re Graco Children's Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding) (per curiam). Discovery requests must be reasonably tailored to include only matters relevant to the case. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam); In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (per curiam). Discovery may not be used as a fishing expedition. In re Am. Optical Corp., 988 S.W.2d at 713.
Before reaching the discoverability of the records at issue, we first must address a threshold issue regarding the burden of proffering evidence concerning the claimed privilege and any exceptions.
Relator argues the trial judge abused her discretion by allowing the production of Decedent's medical records because these records are protected from disclosure by Texas Rule of Evidence 509(c), which provides:
Tex. R. Evid. 509(c). This physician-patient privilege does not apply "[i]f any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition." Tex. R. Evid. 509(e)(4).
Relying in part on In re Jarvis, 431 S.W.3d 129, 136 (Tex. App.-Houston [14th Dist.] 2013, orig. proceeding), relator contends that (1) "it is an abuse of discretion for a trial court to order production of medical and billing records for injuries unrelated to those alleged in the lawsuit," and (2) "the requests for all of Decedent's medical records are overbroad, invade the patient-physician privilege under Texas law, and are outside the scope of discovery in this case."
Relying in part on In re Kristensen, No. 14-14-00448-CV, 2014 WL 3778903, at *5-6 (Tex. App.-Houston [14th Dist.] July 31, 2014, orig. proceeding) (mem. op.), the Motor Speedway Defendants contend mandamus relief is not warranted because "the record does not indicate that relator made a prima facie showing that the physician patient privilege applies to Minx's medical records . . . ."
The general rule is that "[p]leading and producing evidence establishing the existence of a privilege is the burden of the party seeking to avoid discovery." In re Christus Santa Rosa Health Sys., 492 S.W.3d at 279. "The party asserting the privilege must establish by testimony or affidavit a prima facie case for the privilege." Id. "Once the party claiming privilege presents a prima facie case that the documents are privileged, the burden shifts to the party seeking production to prove that an exception to the privilege applies." Id. at 279-80.
Texas Rule of Civil Procedure 193.4(a) requires the party asserting a privilege to present evidence that is "necessary" to support the privilege. See Tex. R. Civ. P. 193.4(a). Although they assail the absence of testimony or an affidavit, the Motor Speedway Defendants do not articulate how an order specifically aimed at obtaining
Accordingly, Decedent's medical records (to the extent that they contain confidential communications between a physician and the patient related to any services the physician rendered or information regarding the patient's identity, diagnosis, evaluation, or treatment) are privileged. See Tex. R. Evid. 509(c). The Motor Speedway Defendants bear the burden of establishing the applicability of the patient-litigant exception to the physician-patient privilege.
The Texas Supreme Court's test for the patient-litigant exception recognizes that "just because a condition may be `relevant' to a claim or defense does not mean a party `relies upon the condition as a part of the party's claim or defense.'" R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994). "[T]he patient-litigant exception to the privilege applies when a party's condition relates in a significant way to a party's
"When this ultimate-issue test is not satisfied, it is an abuse of discretion to order production of the medical records." In re Morgan, 507 S.W.3d 400, 404 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding).
The court reviews the pleadings to determine whether the requested medical records are relevant to a medical or mental condition at issue in the case. See Ramirez, 887 S.W.2d at 844; In re Morgan, 507 S.W.3d at 404. The Motor Speedway Defendants allege in their answer that Decedent's death was attributable to a fatal heart condition. The Motor Speedway Defendants argue that Decedent's medical records are relevant because there is evidence that Decedent may have suffered a heart attack shortly before the collision. This evidence is as follows. Decedent died during a solo race at Houston Motorsports Park. He was traveling at a speed of approximately 141.38 miles per hour when he crossed the finish line at the one-eighth mile track. According to the Harris County Sheriff's Office Incident Report, Decedent's stepfather, and an onsite fire marshal report, at no point after crossing the finish line did Decedent appear to slow down. Decedent's stepfather reportedly approached someone at the track after the accident and stated: "I wonder if he had a heart attack." An autopsy report revealed that Decedent's heart weighed 450 grams and was enlarged. Decedent's left ventricle showed hypertrophy, including "75 percent atherosclerotic stenosis of the proximal left anterior descending coronary artery." The normal weight of an adult male's heart is 233 grams to 383 grams and 75 percent stenosis of the artery is associated with sudden death. Thus, the alleged condition of Decedent's heart is part of Defendants' defense.
Relator argues that this defense does not come within the patient-litigant exception based on In re Nance, 143 S.W.3d 506 (Tex. App.-Austin 2004, orig. proceeding). In Nance, a medical malpractice death case, the defendant hospitals argued that the patient's medical and psychiatric records are relevant to and are part of their causation defense because the patient's mental health history may establish heavy alcoholism that, in turn, may show that she was predisposed to the bleed that resulted, and that this pre-disposition, and not the surgery, caused the bleed. Id. at 512.
We find this part of the Nance decision inconsistent with the Texas Supreme Court's decision in Ramirez, a medical malpractice case in which the plaintiffs alleged the doctor had a medical and emotional condition that affected his care of a patient. 887 S.W.2d at 839. The supreme court held that medical records related to the doctor's alleged condition came within the patient-litigant exception because a jury determination of that condition is of legal significance to the plaintiff's negligence claims. Id. at 843-44. Thus, under Ramirez, the test is not whether the condition should be classified as an inferential rebuttal issue, but whether a jury determination of the existence of the condition would have legal significance to the claims or defenses at issue.
We conclude that the Motor Speedway Defendants have established that the patient-litigant exception applies to medical records related to the condition of Decedent's heart because such condition is part of Defendants' defense that the collision was caused, not by Defendants, but by a condition of Decedent's heart, and a jury determination of the existence of that condition and whether it caused the collision would have legal significance. See Ramirez, 887 S.W.2d at 842-43; M.A.W. v. Hall, 921 S.W.2d 911, 914 (Tex. App.-Houston [14th Dist.] 1996, orig. proceeding).
Relator argues that, even if the patient-litigant exception applies to medical records relevant to Decedent's alleged heart condition, the trial judge abused her discretion by allowing production of all of Decedent's medical records for the five years prior to his death without an in camera review to limit production to just those records.
Relator's argument is supported by Ramirez, and two decisions of our court. In Ramirez, the supreme court conditionally granted a writ of mandamus, finding, after an in camera review of the records, the production ordered by the trial judge was overly broad and that some of the information was irrelevant to the condition at issue. 887 S.W.2d at 844. The supreme court stressed that the highly personal nature of this information places a heavy responsibility on the trial court to prevent any disclosure that is broader than necessary. Id. Likewise, in In re Jarvis, 431 S.W.3d at 136, our court held that the trial court abused its discretion by ordering the production of the plaintiff's medical billing records that were unrelated to her claimed hand injury because such records were protected by physician-patient privilege. Also, in M.A.W., 921 S.W.2d at 914-15, a medical malpractice case, our court held that although plaintiffs were entitled discovery of the treating doctor's medical records showing substance abuse by the doctor, the portion of the records unrelated to substance abuse is irrelevant and therefore remains privileged.
"Therefore, even if a condition is `part' of a party's claim or defense, patient records should be revealed only to the extent necessary to provide relevant evidence relating to the condition alleged."
We conclude that the trial court abused its discretion by permitting the production of Decedent's medical records without first reviewing the records in camera to determine which, if any, are relevant to Decedent's alleged heart condition, and by not limiting production to just those records, as well as redacting any irrelevant information from any records found to be relevant.
The Motor Speedway Defendants argue that relator waived her right to an in camera review of the medical records because relator did not specifically request the trial court to conduct an in camera review. Relator's motion to reconsider argued that Defendants' requests for all of Decedent's medical records invade the physician-patient privilege and are overbroad (citing Ramirez and Jarvis), and that the Medical Authorization Order provides no mechanism to allow relator to assert the privilege for records unrelated to the conditions relevant to the claims and defenses in this case. An in camera inspection would serve as a mechanism for excluding the production of privileged records. Relator also incorporated and attached her petition for writ of mandamus as Exhibit C to the motion to reconsider. The petition expressly requests that an in camera inspection be ordered. Thus, the motion to reconsider provided the trial court sufficient notice of relator's desire for an in camera inspection.
The Motor Speedway Defendants also argue that they are entitled to the production of all of Decedent's medical records under the "offensive use doctrine", which prohibits a party from asserting a privilege to withhold evidence which would materially weaken or defeat the asserting party's claims. See Ramirez, 887 S.W.2d at 840; Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985) (holding that plaintiff could not assert privilege for medical records that were relevant to and possibly validated the statute of limitation defenses that had been asserted; the trial court found the records to be relevant after an in camera review). The Motor Speedway Defendants argue that relator has used the privilege offensively by claiming that Decedent was in reasonably good health at the time of the accident, and simultaneously using the physician-patient privilege to preclude discovery of medical records that might show Decedent was not in good health. In Ginsberg, 686 S.W.2d at 108, the supreme court warned that its holding should not be construed as endorsing litigants to engage in "fishing expeditions" into privileged matters. See also Cantrell v. Johnson, 785 S.W.2d 185, 189 (Tex. App.-Waco 1990, orig. proceeding) (distinguishing Ginsberg because the trial court made no express finding that the documents in question were relevant). Here, however, the Motor Speedway Defendants have not shown and the trial judge has not found that Decedent's medical records (beyond those related to Decedent's alleged heart condition) are relevant. The Motor Speedway Defendants may not use the "offensive use doctrine" as
The Medical Authorization Order and the denial of the motion to quash were not an abuse of discretion. But the trial court abused its discretion by permitting the production of Decedent's medical records without first reviewing the records in camera to determine which, if any, are relevant to Decedent's alleged heart condition, and by not limiting production to just those records.
We therefore deny the petition for writ of mandamus to the extent that it requests our court to compel the trial judge to vacate the Medical Authorization Order and quash the subpoenas for medical records. But we conditionally grant the petition in part, and direct the trial court to: (1) conduct an in camera review to determine which records, if any, are relevant to Decedent's alleged heart condition, and (2) and permit discovery of only records relevant to the alleged heart condition.
We are confident the trial court will act in accordance with this opinion. The writ of mandamus shall issue only if the trial court fails to do so.
