In the case of In re Barnes, 655 S.W.3d 658 (Tex. App. 2022), the Texas court upheld an injured party’s right to protect their mental health records where a mental health or medical issue was not at the center of the controversy. It emphasized the importance of screening privileged documents before disclosure to ensure that the least amount of confidential information necessary is revealed as part of the case. A general request for mental anguish coupled with negligence and bystander liability claims was an insufficient reason to order the disclosure of the entirety of the party’s mental health records. This decision is important for defense counsel to note as the issue at hand may have been easily avoided if the request for records had been sufficiently tailored and narrowed in scope.
Background of the Case
Relator, E.B., was a minor when she and her father were injured while riding an all-terrain vehicle involved in a rollover crash. The ATV was designed, manufactured and marketed by Bombardier Recreational Products, Inc. and sold by Richardson Motorsports (RPI). E.B.’s brother lost his life in the accident. Relators brought a suit against RPI for negligently removing the door netting from the ATV, which they claimed ultimately resulted in E.B’s injuries. E.B. also sued for bystander liability based on the fact that she witnessed her brother’s death. Finally, she made a claim for general mental anguish damages.
During the pretrial phase, RPI issued a subpoena for E.B’s psychological treatment records from three providers. It also requested psychological records for E.B’s mother. Although she was not present at the scene of the crash, the mother also sought wrongful death damages as part of the lawsuit. Relators filed motions to quash the subpoenas asserting that the records were privileged. Eventually, RPI withdrew its request for the mother’s records, but asserted that E.B.’s were not protected by privilege. After some back and forth, the Relators’ attorneys provided E.B.’s records to the court for an in camera inspection and the judge reviewed them outside the view of counsel. The court ultimately denied the Relators motions to quash and ordered the production of E,B,’s records to RPI, including those the court did not review. The court ordered the same as to the mother’s records, even after RPI had withdrawn its request for those documents.
In response, the Relators requested mandamus relief to block the disclosure of the records. Mandamus relief is warranted when a trial court abuses its discretion and there is no remedy on appeal that would prove adequate. In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009). As to documents, mandamus is appropriate if the court concludes that, “they are privileged and have been improperly ordered disclosed.” In re Living Ctrs. Of Tex., Inc., 175 S.W.3d 253, 256 (Tex. 2005). Mandamus may also be appropriate in a circumstance where the trial court abuses discretion by failing to fully inspect documents meant for an in camera inspection before ordering their production. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016). These errors could not be remedied on appeal as the opposing party would have already viewed the allegedly privileged documents.
Physician-Patient and Mental Health Information Privileges
The Relators argued that the records were privileged according to rule 509 physician-patient privilege and rule 510 the mental health information privilege. They also argue that the subpoenas are overly broad and irrelevant. RPI asserts that the records are exempt from privilege since E.B. and her mother made a claim for mental anguish damages.
Rule 510 prevents the disclosure of a “confidential communication between the patient and a mental health professional and any record if the patient’s identity, diagnosis, evaluation, or treatment that is created or maintained by a professional.” 510(b)(1)(A)-(B). The rule also contains an exception which is often referred to as the patient-litigant exception. This exception allows the release of the documents if “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.” Id.
The Relators have the initial burden to establish their right to not share the records. They also must request that any documents submitted to the trial court for in camera inspection “be carried forward under seal so that the appellate court can evaluate the information.” In re Trujillo, No. 09-13-00185-CV, 2015 WL 799439, at *1. There is no evidence in this case that the Relators submitted the documents to the court under seal. Instead, they were submitted with an accompanying “In Camera Motion.” The motion asserted their right to preserve their privilege and objections. In effect this means that the appeals court had no way to verify that the documents tendered to the trial court were the same as those tendered on appeal. Despite the failure on the part of the Relators to comply with this requirement, the court determined that it had a sufficient record to move forward as the actual examination of the content of the health care records was not at the crux of the question before the court.
Were the Medical Records Sought by RPI Privileged?
Relators argued that RPI’s request for their mental health records was overly broad and irrelevant to the litigation at hand. They also contended that the trial court failed to “redact, delete, or otherwise protect other irrelevant information from unnecessary disclosure.”
The Supreme Court outlined the proper analysis of this issue in R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) . It stated in its analysis: “The patient-litigant exception to the privileges applies when a party’s condition relates in a significant way to a party’s claim or defense. Communications and records should not be subject to discovery if the patient’s condition is merely an evidentiary or intermediate issue of fact rather then an ultimate issue for a claim or defense, or if the condition is merely tangential to a claim rather than central to it.” In other words, the scope of the exception should be tied in a meaningful way to the legal consequences of the claim or defense.” Tex.R.Civ.Evid. 509(d)(4), 510(d)(5) As a general rule, a mental condition will be a part of a claim or defense if the pleadings indicate that the jury must make a factual determination concerning the condition itself.
Given this, the law states that any relevant documents or records that fit within the bounds of the exception must only be revealed to the extent that they are relevant to the condition in question. Any other documents not relevant must be parsed out in order to maintain the privilege to the greatest extent possible. “Thus, the courts reviewing claims of privilege and inspecting records in camera should be sure that the request for records and the records disclosed are closely related in time and scope to the claims made so as to avoid any unnecessary intrusion into private affairs.” Mutter v. Wood, 744 S.W.2d 600, 601 (Tex. 1988). The court emphasized that all measures to prevent any disclosure than is broader than required must be implemented.
Exceptions to the Medical and Mental Health Privileges
The court summarized the exceptions to the medical and mental health privileges as follows:
- The records sought to be discovered are relevant to the condition at issue, and
- 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 parts of the test must be met for the exception to apply.
Here the records in question do not relate to a condition alleged in the pleadings. Neither E.B. nor her mother have requested any kind of extraordinary mental anguish damages, even though E.B. witnessed her brother’s death in real time during the rollover crash. E.B. and her mother also did not claim any kind of psychological condition. The Relators have not placed their mental conditions in controversy. Therefore, the trial court was incorrect in its assessment that the general metal anguish claims warranted the disclosure of mental health and medical records. “A claim for mental anguish will not, standing alone, make a plaintiff’s mental or emotional condition a part of the claim. The plaintiff must assert a mental injury that exceeds the common emotional reaction to an injury or loss.” Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988).
The courts have set out factors to determine whether RPI could use an exception to the mental health privilege. Specifically, as to this case the court examined whether:
“As the proponent of the privilege, RPI was required to demonstrate a mental health condition E.B. and her mother are relying on as part of their pleaded claims;
- A generic pleading for mental anguish damages does not alone qualify as a mental health condition in making the determination whether a mental health condition is a part of the claim;
- When RPI failed to demonstrate a condition described in paragraph (1), the inquiry ended and the privilege sustained There was no need to consider anything more and no in camera tender or inspection was required or permitted.
- Only if RPI demonstrated a condition described in paragraph(1) was the trial court required to conduct an in camera review of the records to determine whether their content was within the scope of RPI’s request.
- If those records were not within the scope of the request, they were privileged.
- If those records were within the scope of the request, then the court must conduct a careful examination of them and make a relevance determination, releasing only those records and only as is consistent with parameters set by Ramirez and other authorities.
The court here concluded that “When RPI failed as a threshold matter to point to any pleading where either E.B. or her mother rely on a mental health condition as part of their claims, the patient-litigant exception to the privileges established under rules 509 and 510 remains intact, and any further inquiry by the trial court was both unnecessary and unwarranted.” In addition, it held that an in camera review was both unnecessary and inappropriate in this instance.
The Bystander Claim
Bystander liability law in Texas provides that a bystander may recover damages if:
- The bystander was located near the scene of the accident and not a distance away from it;
- Shock to the bystander resulted from a direct emotional impact upon the bystander from the sensory and contemporaneous observance of the accident victim, as contrasted with learning of the accident from others after its occurrence; and
- The bystander and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Freeman v. City of Pasadena, 744 S,W.2d 923, 923-24 (Tex. 1988).
RPI argues that E.B’s general mental anguish claim as it relates to her bystander cause of action opens up their right to overcome privilege and access all of her mental health and medical records. To the contrary, a claim for bystander liability does not require proof of any mental health or medical condition. Rather she seeks compensation for the shock and horror of witnessing her brother’s death at the alleged fault of RPI’s negligence. She did not rely on the presence of a particular medical or mental health condition as the basis of her claim, and therefore there was no basis to waive her right to privilege on this front. Thus, the court determined that the same analysis was applicable to the bystander claim as that brought forth for her claim based on her own injuries.
The Sword-and Shield Waiver
The sword-and-shield waiver is also known as the offensive use of privilege. This generally occurs when a plaintiff “uses one hand to seek affirmative relief and the other to lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing on the case.” Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). For the sword-and shield waiver to be found by a court, the following elements must be present:
- The party asserting privilege must seek affirmative relief.
- The privileged information must be such that, if believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted.
- Disclosure of the confidential communication must be the only means by which the aggrieved party may obtain the evidence. Republic Ins. Co. v. Davis, 856 S.W.2d 158 (Tex. 1993).
If even one of these requirements is not present, the court must uphold the privilege. Here RPI argues that because E.B. and her mother listed health care providers in their responses to discovery, they should be subject to the sword-and-shield waiver. However, RPI did not address any of the requirements laid out in the Davis court decision. The court found that RPI “could not reasonably claim that a failure to disclose mental health records was outcome determinative of the cause of action asserted.” In fact, the court went further to note that RPI’s request for all mental health records was overbroad as such a request goes beyond the accident in question. Further, RPI did not delineate what relevant evidence it hopes to discern from this disclosure.
The court found that the sword-and-shield waiver was not applicable in this case. It determined that it operates as a “narrow exception to privilege that operates in narrow circumstances not present here.” RPI failed to demonstrate a basis for this argument.
Takeaways for Defense Counsel
This case is important for defense counsel to note because it spells out court’s reluctance to allow litigation to unnecessarily break open the confidential relationship between a patient and a mental health or medical professional. Defense attorneys should take care in defining the scope of their discovery requests for mental health and medical records. The court stated several times that if the defense in this case had requested only documents pertaining to the plaintiff's mental health impacted by the ATV accident, or limited in time following the accident, etc., it may have allowed such documents divulged. Without a tailored approach, however, the court felt that it had a "heavy responsibility" and must take "great care" in deciding when the physician-patient privilege may be overcome in litigation. Ultimately, the court determined that the trial court did abuse its discretion and its actions left the Relators with no feasible remedy on appeal. A more defined scope may have changed the outcome for the defense in this case.