The Limits of the Doctor-Patient Privilege

How strong is Nevada’s doctor-patient privilege and when does it apply? The Supreme Court of Nevada extensively discussed these issues last Thursday in Mitchell v. Dist. Ct., 131 Nev. Adv. Op. 21 (2015), producing a 5, 1 (Douglas), 1 (Saitta) decision.

Mitchell arose from a medical malpractice claim. This testimony came out:

In deposition, Mitchell admitted that at the time he operated on Bunting he was addicted to Ketamine and Valium, which he had abused intermittently for years. Mitchell denies operating on Bunting—or any patient—while under the influence of drugs or alcohol. But, three months after Bunting’s tonsillectomy, Mitchell was arrested for domestic violence while high on drugs, and three months after that, Mitchell was arrested for driving under the influence. Mitchell was convicted of both offenses. He disclosed in deposition that, after his arrests, he and his wife pursued marriage counseling and that he was treated for substance abuse by two different doctors, first on an outpatient, then on an inpatient basis.

Unsurprisingly, Bunting argued Dr. Mitchell was intoxicated when the surgery was performed and the medical practice should have separately recognized the addiction, preventing the surgery. To support this, Bunting “subpoenaed Mitchell’s counseling and substance abuse treatment records.” Dr. Mitchell’s objection to the subpoenas was denied, leading to the writ petition.

NRS 49.225: The doctor-patient privilege.

Dr. Mitchell objected that the subpoenaed records were protected by Nevada’s statutory doctor-patient privilege. The Court noted typically, “[a] patient who voluntarily puts his physical or mental condition in issue in a lawsuit loses the protection of the doctor-patient privilege for communications with his doctor about that condition.” It ultimately agreed with Dr. Mitchell.

[N]either the at-issue waiver doctrine nor the patient-litigant exception properly applies unless the patient is the one who puts his physical or mental condition in issue. … Mitchell did not place his drug addiction in issue in the underlying malpractice suit; Ravella [the guardian] did. Analyzed purely as a matter of waiver, Mitchell’s doctor-patient privilege thus remains intact and is not affected by Ravella’s malpractice and negligent supervision claims.

NRS 49.245(3): The patient-litigant exception to the doctor-patient privilege.

There is no doctor-patient privilege “[a]s to written medical or hospital records relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.” Dr. Mitchell argued for this exception to apply the patient must put the condition at issue. The Court concluded the plain language of the statute did not contain this requirement and the legislative history suggested this requirement was intentionally omitted.

Yet the Court then noted “[t]o terminate the privilege, the condition must be more than merely relevant to a litigated claim or defense; it must be … an element … of the claim or defense.” “Element” is not statutorily defined, but the Court interpreted it to mean a “part of a claim that must be proved for the claim to succeed.”

Relevance alone does not make a patient’s condition an element of a claim or defense. At minimum, the patient’s condition must be a fact to which the substantive law assigns significance. A defendant who pleads not guilty by reason of insanity, for example, has asserted a defense that has, as one of its elements, his insanity. Similarly, a disinherited child who challenges her father’s will on the grounds he was incompetent has asserted a claim about her father’s condition to which legal consequences attach: If proved, the condition alleged invalidates the will. In both instances, the patient’s condition is an element of the claim or defense—not merely relevant—because the claim or defense fails unless the condition asserted is established in fact.

(quotations and citations omitted).

As to Dr. Mitchell, his “drug addiction is not an element of Ravella’s malpractice claim against him.” Ravella argued the addiction contributed to Dr. Mitchell breaching the standard of care.

This argument misses the mark. Of legal consequence to a medical malpractice claim is whether the practitioner’s conduct fell below the standard of care, not why. Put another way, Ravella wins if she shows that Mitchell’s misadministration of the anesthetic fell below the standard of care and caused Bunting’s injuries; legally, Mitchell’s diminished capacity doesn’t matter. While Mitchell’s drug addiction may be relevant to, it is not an element of, Ravella’s medical malpractice claim.

Yet the Court reached the opposite conclusion as to the medical practice. “Ravella’s negligent hiring and supervision claims against his employer require her to establish that the clinic knew or should have known that Mitchell was unfit for the position he held.” This made Dr. “Mitchell’s condition an element of Ravella’s negligent hiring and supervision claims.”

Facially, the exception was satisfied. However the Court expressed concerns about invoking it and concluded it required “close scrutiny when the claim or defense triggering it is asserted by or on behalf of someone other than the patient.”

A patient presumably will not base a claim or defense on his physical or mental condition unless that condition in fact exists. A stranger to the doctor-patient relationship, by contrast, may be tempted to speculate as to the physical or mental condition of his or her adversary, especially if that will open the door to embarrassing or painful revelations. To invoke the patient-litigant exception, therefore, the nonpatient must establish a basis in fact for the district court to conclude that the condition exists and is an element of a legitimate claim or defense.

Based upon Dr. Mitchell’s own testimony and other facts in the record, that standard of review was more than satisfied. An in-camera review of the documents was ordered to determine which would be discoverable.

NRS 49.247: The marriage and family therapist-client privilege.

As to the martial and family therapist records, they were not an element of any claim nor had Dr. Mitchell put them at issue. The privilege was not waived.

Other things worth knowing about Mitchell.

1. Writ petitions are slightly more likely to be granted on privilege based discovery questions. Generally speaking, the Supreme Court of Nevada rarely agrees to hear writ petitions for many reasons including the availability of a post-judgment appeal. “But when a discovery order directs disclosure of privileged information, a later appeal may not be an effective remedy.” “[W]ithout writ relief, compelled disclosure of Mitchell’s assertedly privileged communications will occur before a final appealable judgment is reached.” Recognizing this, the Court is more inclined to consider writs arising from “orders allowing pretrial discovery of privileged information, especially when the petition presents an unsettled and important issue of statutory privilege law.”

2. The value of admitting course and scope may be higher. I previously wrote about how it can be important tool in limiting the scope and cost of discovery. Given how Mitchell applied a separate analysis to a negligent hiring claim, perhaps the tactical move is to then admit course and scope and move for summary judgment on the negligent hiring claim, hopefully extinguishing it to restore the privilege.

3. Know your privileges.