In Re: J.H.S., Jr., as next friend of J.S.S. (a minor)--Appeal from 387th District Court of Fort Bend County

Petition for Writ of Mandamus Denied in Part and Granted in Part and Opinion filed December 17, 2007

Petition for Writ of Mandamus Denied in Part and Granted in Part and Opinion filed December 17, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00937-CV

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IN RE J.H.S., Jr., as next friend of J.S.S.(a minor), Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

Relator J.H.S., Jr., as next friend of J.S.S., a minor, has filed a petition for writ of mandamus in this court. See Tex. Gov=t Code Ann. '22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator requests that we direct respondent, the Honorable Robert J. Kern, presiding judge of the 387th District Court of Fort Bend County, Texas, to vacate his October 31, 2007 order denying relator=s motion for protection of certain medical, psychological, and psychiatric records of J.S.S., a minor who is not party to the underlying suit.[1]

Relator has not shown that the trial court abused its discretion in denying the motion for protection of J.S.S.=s psychological and psychiatric records. We therefore deny the petition insofar as it seeks relief from provisions of the order (1) granting a psychiatric expert restricted access to J.S.S.=s psychological and psychiatric records for purposes of conducting a custody evaluation of J.F.J., who is J.S.S.=s half-brother, in the underlying divorce action between J.S.S.=s and J.F.J.=s mother and J.F.J.=s father; (2) requiring real party in interest N.P.J., mother of J.S.S., to execute necessary releases to permit the expert=s restricted access to J.S.S.=s psychological and psychiatric records; and (3) requiring the expert (a) to segregate J.S.S.=s records from any other records in his possession related to the parties in the underlying suit; (b) not to make reference to the contents of J.S.S.=s records in his written report; and (c) to submit his report in camera to the court, from which it will not be released without further order and only after provision of notice to relator.

The record contains no evidence to support a conclusion that any party to the underlying action relies on J.S.S.=s medical condition as part of that party=s claim or defense. See Tex. R. Evid. Ann. 509(e)(4) (Vernon 2003); R.K. v. Ramirez, 887 S.W.2d 836, 842B43 (Tex. 1994). Although the order is tailored to restrict disclosure of the medical records only to the expert who will conduct the custody evaluation and to limit the expert=s use of information from those records in his report, which will be submitted only in camera to the court, there has been no threshold showing to justify even restricted access to J.S.S.=s medical records. Therefore, we conclude that the trial court abused its discretion in denying relator=s motion for protection of J.S.S.=s medical records, and that relator does not have an adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 837B39, 843 (Tex. 1992) (orig. proceeding). Accordingly, we conditionally grant relator=s petition for writ of mandamus insofar as it seeks relief from the order=s provisions (1) granting the expert access to J.S.S.=s medical records and (2) requiring real party in interest N.P.J. to execute releases to permit the expert=s access to J.S.S.=s medical records. We are confident the trial judge will vacate such portions of the October 31, 2007 order; the writ will issue only if the trial judge fails to do so.

We hereby lift our order of November 7, 2007 staying the trial court=s October 31, 2007 order.

PER CURIAM

Petition Denied in Part and Granted in Part and Memorandum Opinion filed December 17, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Frost.

[1] We recognize that psychiatric records are medical records. For purposes of this opinion, however, Amedical records@ shall encompass those records from any non-psychiatric medical professional who has consulted with or treated J.S.S. for any medical issue other than a mental or emotional condition or disorder. The records of medical professionals who have consulted with or treated J.S.S. for a mental or emotional condition or disorder are covered by the term Apsychiatric records.@ The records of non-medical professionals who have consulted with or treated J.S.S. for a mental or emotional condition or disorder are covered by the term Apsychological records.@