Happy Dia De Los Muertos! Hope everyone had a safe and fun Halloween last night.
This morning, the First District Court of Appeals released its published opinion in In re Morgan, No. 01-16-00530-CV, a mandamus concerning the litigation exception to the physician-patient privilege.
Nathaniel Morgan filed for divorce from Nikki Morgan. In his amended petition, Nathaniel requested to be named primary. In January, 2016, he propounded interrogatories and requests for production which included a request for Nikki’s medical, psychological, and psychiatric records. Nikki objected to the request as outside the scope of discovery, unduly burdensome, and protected by physician-patient privilege. Nathaniel filed a motion to compel and for sanctions. After a hearing, the trial court ordered thirteen pages of medical records concerning a medical condition of Nikki’s to be produced in full after an in camera inspection. Specifically, the trial court found that Nathaniel relied upon Nikki’s condition as part of his claim or defense and that the records were relevant to that condition which triggered the litigation exception under Texas Rule of Evidence 509(e)(4). Nikki filed a petition for writ of mandamus.
The exception applies when “any party relies on the patient’s physical, mental, or emotional condition as part of the party’s claim or defense and the communication or record is relevant to that condition.” TEX. R. EVID. 509(e)(4), 510(d)(5). There is a two-prong test to the exception: “(1) the records sought to be discovered are relevant to the condition at issue, and (2) the condition is relied upon as a part of a party’s claim or defense, meaning that the condition itself is a fact that carries some legal significance.” Both prongs must be met. But even if both prongs are met, the trial court must perform an in camera inspection of the information.
The Court of Appeals noted that the test is not mere relevance. The condition must be central or ultimate to the claim, as opposed to merely tangential.
In her first issue, Nikki argued that no pleading demonstrated a reliance on a medical condition sufficient to invoke the litigation exception to the physician-patient privilege. Nathaniel’s pleadings did not include an allegation that Nikki’s medical condition affected her suitability to serve as a conservator. Nor did Nikki’s own pleadings raise the issue. Thus, though the trial court found that Nathaniel’s claim relied on Nikki’s condition, the record did not support that finding. Because no pleading or defense mentioned Nikki’s medical condition, the trial court erred by finding the litigation exception applied and ordering the production of the medical records.
Because the Court of Appeals sustained Nikki’s first issue, it did not reach her second issue. The petition for writ of mandamus was granted.
One of the implied holdings of this case is that the claim or defense alleged by the party seeking the medical records must be asserted in writing in the pleadings. This is consistent with dicta in R.K. v. Ramirez, 887 S.W.2d 836, 843 n. 7 (Tex. 1994) (“Whether a condition is a part of a claim or defense should be determined on the face of the pleadings, without reference to the evidence that is allegedly privileged.”). One may reasonably suppose that Nathaniel made the argument orally because the trial court found after a hearing that Nathaniel relied upon such claim or defense. This raises the question: If Nathaniel amends his pleadings accordingly, will the litigation exception apply?