Bonfeld-Davis v. Hon. Ditsworth/Hauger

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LINDA BONFELD-DAVIS, a single woman, ) ) ) Petitioner, ) ) v. ) ) THE HONORABLE JOHN DITSWORTH, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) RAMONA HAUGER and WILLIAM R. ) HAUGER, wife and husband, ) ) Real Parties in Interest. ) __________________________________) DIVISION ONE FILED: 08-10-2010 PHILIP G. URRY,CLERK BY: DN No. 1 CA-SA 10-0143 DEPARTMENT A Maricopa County Superior Court No. CV2009-091443 DECISION ORDER This special action was considered by Presiding Judge Peter B. Swann and Judges Margaret H. Downie and Lawrence F. Winthrop during a regularly scheduled conference held on August 4, 2010. After consideration, and for the reasons that follow, IT IS ORDERED that the Court of Appeals, in the exercise of its discretion, accepts jurisdiction in this special action and grants relief. FACTS AND PROCEDURAL HISTORY Ramona A. and William R. Hauger (collectively, Plaintiffs ) filed a complaint in superior court against Linda Bonfeld-Davis ( Defendant ) for negligence, seeking recovery for injuries that plaintiff Ramona Hauger sustained as the result of an automobile accident. of the accident, Defendant impaired condition. she was The complaint alleged that at the time impaired was driving her vehicle in an Defendant filed an answer denying that and asserting affirmative defenses of assumption of the risk and comparative negligence. Discovery proceeded and Plaintiffs served Defendant with Uniform Personal provided: Injury Interrogatories. Interrogatory #20 State whether you . . . ingested any drugs within 48 hours prior to the accident . . . . Defendant answered: The day prior to the accident, Defendant took one pill prescribed to her for anxiety; and another the morning of the accident. Food was also ingested. Plaintiffs records. When then sought Defendant to discover refused to Defendant s disclose the medical records, Plaintiffs filed a motion to compel disclosure. Defendant filed a protected response and argued that the records are from discovery by the physician-patient privilege and the privilege was not waived. 2 The superior court granted Plaintiffs motion to compel disclosure and ordered Defendant to disclose her medical records for the 36 months preceding the accident. Defendant brought this special action seeking relief from the court s order. JURISDICTION We accept special action jurisdiction. Special action review of an order compelling discovery over the objection of a party asserting a privilege is appropriate because there is no equally plain, speedy, or adequate remedy by appeal. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 252, ¶ 3, 63 P.3d 282, 283 (2003). DISCUSSION We review de novo the questions whether a privilege exists and whether it has been waived. Id. at 254, ¶ 10, 63 P.3d at 285. Plaintiffs concede that Defendant s medical records fall within the physician-patient privilege, and we agree. The privilege applies to communications made by a patient to her physician for the purpose of treatment, A.R.S. § 12-2235 (2003), and the privilege includes medical records. Ziegler v. Superior Court (DeVito), 131 Ariz. 250, 251, 640 P.2d 181, 182 (1982). Generally, Ariz. R. regarding Civ. any privileged P. materials 26(b)(1)(A) matter, are ( Parties not 3 may not discoverable. obtain privileged, discovery which is relevant . . . . ); Tucson Med. Ctr. Inc. v. Rowles, 21 Ariz. App. 424, 425, 520 P.2d 518, 519 (1974). But discoverable where the privilege has been waived. they are See Buffa v. Scott, 147 Ariz. 140, 708 P.2d 1331 (App. 1985). Here, Plaintiffs privilege because contend her family that Defendant members made waived statements the to plaintiff Ramona Hauger concerning Defendant s medical history. The physician-patient privilege cannot, however, be waived by third parties in the absence of the patient s authorization. Buffa, 147 Ariz. at 143, 708 P.2d at 1334. Plaintiffs do not contend that Defendant authorized her relatives statements. Plaintiffs also contend that Defendant waived the privilege because her answer to condition at issue. Interrogatory #20 placed her medical A.R.S. § 12-2236 provides that a patient waives the privilege when he offers himself as a witness and voluntarily testifies communications. on compulsory with reference to the [privileged] In Buffa, we held that a patient s testimony cross-examination at a deposition was voluntary and therefore did not constitute a waiver. Ariz. at 142, 708 P.2d at 1333. not 147 Similarly, Defendant s answers to the interrogatories were not voluntary. Further, we note that a patient s statement concerning her intake of medicine in the days immediately necessarily a waiver preceding of the 4 the conduct at issue physician-patient is not privilege surrounding her medical records, because it relates to her own action -- not the communications she made to her physicians. See id. at 143, 708 P.2d at 1334. Plaintiffs finally contend that Defendant impliedly waived the privilege by raising affirmative defenses. To determine whether a privilege has been impliedly waived, Arizona courts apply the test set forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). 52, 57, State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. ¶ 11, 13 P.3d 1169, 1174 (2000). The Hearn test provides that a privilege is impliedly waived when: (1) assertion of the privilege was a result of some affirmative act, such as filing suit [or raising an affirmative defense], by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. State Farm Mut. Auto. Ins. Co., 199 Ariz. at 56, ¶ 10, 13 P.3d at 1173 (quoting Hearn, 68 F.R.D. at 581) (alteration in original). Here, assumption Defendant of the risk raised two and affirmative comparative defenses: negligence. Her assertion of these defenses, however, did not put her medical condition or history at issue. It was Plaintiffs who placed 5 Defendant s medical condition at issue -- not Defendant as Hearn requires. Defendant did disclose, without assertion of the privilege, that she had taken a pill prescribed for anxiety. Information pertaining to that act, including the type of medication, the dosage and the time at which she took it, is therefore fairly discoverable. Such information is not protected by the privilege for the same reason that its disclosure did not waive the privilege. CONCLUSION We accept jurisdiction of this special action and grant relief. Defendant s medical records are not discoverable because they fall within the physician-patient privilege and the privilege was not waived. The superior court s order requiring Defendant to disclose the records is therefore vacated. /s/ _______________________________ Peter B. Swann, Presiding Judge 6

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