Matthews v. Super. Ct.

Filed 8/25/08 Matthews v. Super. Ct. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ORIGINAL PROCEEDINGS in mandate. James D. Endman, Judge. Petition granted.

Trope and Trope, Thomas Paine Dunlap and Anne Kiley for Petitioner.

No appearance on behalf of Respondent.

Feinberg Mindel Brandt & Klein and Wallace S. Fingerett for Real Party in Interest.

________________________________

In this case we hold that a medical prescription held by a registered pharmacist to whom it was presented is a privileged communication under the physician-patient privilege. (Evid. Code, 994.)[1] The same is true of a prescription issued by a psychotherapistit qualifies under the psychotherapist-patient privilege. ( 1014.) We also conclude that if this privilege is waived by the patient, a record of the prescription may be discoverable, subject to appropriate protective orders and limitation of disclosure to records relevant to contested issues.

Petitioner William Matthews seeks a writ of mandate to compel production of prescription records concerning real party in interest Natalie Matthews, his former spouse.[2] The records are sought for use in a contested custody evaluation concerning the children of the parties. William claims Natalie waived any physician-patient or psychotherapist-patient privilege by disclosures she made in deposition testimony about medications prescribed for her use and the pharmacies where she had filled them. The trial court ruled the prescription records were not discoverable, and quashed subpoenas for their production. We shall issue a peremptory writ directing the trial court to vacate its order and enter a new order permitting discovery, with appropriate protections for Natalies privacy.

FACTUAL AND PROCEDURAL SUMMARY

William and Natalie, parents of two young boys, were divorced in September 2006. Pursuant to the judgment of dissolution, William and Natalie have joint legal custody of their children. They shared physical custody of the children after the judgment.[3] Natalie obtained an order to show cause for modification of the visitation agreement, citing changes in the childrens schedule and the relocation of William. William sought a modification of child custody and visitation before the trial court could rule on Natalies motion, requesting that he be granted sole legal custody of the children.[4]

In support of his motion for sole legal custody, William alleged Natalie has a substance abuse problem and suffers from depression. He requested a child custody evaluation including psychiatric testing of Natalie, determination of her visitation rights and whether she should be randomly tested for drug use. William stated that he was alerted to the alleged substance abuse through a phone call from a former boyfriend of Natalie, whom he named. According to Williams declaration, the friend told him Natalie was on super strong Vicodin. . . . [She also] receives multiple prescriptions from multiple doctors. The friend later submitted a declaration repeating these allegations.

The trial court, considering William and Natalies claims, ordered them to submit to a child custody/psychiatric evaluation by a court appointed evaluator, Dr. Shawn McCoy. This order was stipulated to by both parties, who agreed to waive all statutory and non-statutory privilege so as to permit Dr. McCoy to have access to health [and] mental health . . . records, [which] Dr. McCoy believes are necessary for the purposes of performing the evaluation. Dr. McCoy later asked the parties to fill out medical history questionnaires. Natalie filled out her questionnaire, disclosing that she suffered from several ailments and was taking multiple prescription medications. She sent the completed questionnaire to both Dr. McCoy and Williams attorneys.

After receiving the completed questionnaire, Williams attorneys twice deposed Natalie regarding her medical conditions and her prescription history. During the first deposition, Natalie testified as to her current prescriptions, disclosing that she was taking Xanax, Ambien, Soma, and Vicodin, and had been doing so during the previous six months. These prescriptions were from a physician and a psychiatrist. She also testified that she takes the Vicodin as needed for pain management, and had taken it within the previous four days. Williams attorney asked Natalie if her physician had told you how often youre supposed to take Vicodin? She responded, Yes. Natalie was then asked, What has he told you in that regard? At this point, her attorney objected, stating for the record that anything spoken between doctor and patient is doctor/patient privilege. But you can answer to the best of your ability. Natalie continued to answer further questions, disclosing the amount of Vicodin prescribed to her, how often she takes it, and how often the drugs were prescribed. She testified that she uses a single pharmacy, Kanan Pharmacy, to fill her prescriptions.

In her second deposition, Natalie testified as to the frequency and reasons she was taking Ambien and Vicodin. She again testified that her prescriptions were filled only at Kanan Pharmacy. She testified that she was seeing therapists for depression. Neither Natalie nor her attorney objected to these questions. William believed Natalie was untruthful regarding her prescription drug usage during both depositions, as her testimony was counter to the friends claims.

Concerned that Dr. McCoy would not seek records to corroborate or refute the friends claims, William served subpoenas duces tecum on nine pharmacies near Natalies home.[5] These subpoenas requested production of records for any prescriptions filled in Natalies name, including but not limited to the type of medication, the date the prescription was filled, the prescribing doctor, the drug prescribed and the quantity of the drug prescribed, during the period January 1, 2006 to the date of production. William seeks either to use this information by providing it to the custody evaluator, or to impeach the evaluators testimony during later custody proceedings.

In opposition to the subpoenas, Natalie claimed that the production of records sought by the subpoenas would violate her right to privacy. She subsequently moved to quash the subpoenas. After a hearing, the trial court quashed all subpoenas except for the pharmacy already disclosed in her depositions, Kanan Pharmacy.

William brings this petition for a writ of mandate to overturn the trial courts order quashing the subpoenas.

DISCUSSION

Mandate is a proper remedy for reviewing discovery orders. (Rudnick v. Superior Court (1974) 11 Cal.3d 924, 928.) A trial courts discovery orders are reviewed for an abuse of discretion and will be overturned upon a prerogative writ if there is no substantial basis for the manner in which trial court discretion was exercised or if the trial court applied a patently improper standard of decision. (People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1071, quoting Coriell v. Superior Court (1974) 39 Cal.App.3d 487, 491, fn. 1.)

In reviewing this petition, we determine, first, whether Natalies prescription records are protected by the physician-patient or psychotherapist-patient privilege and, if they are, whether and to what extent Natalie has waived these privileges by disclosing her medical conditions, the medications that had been prescribed for her use, and where they were filled.

I

William claims that Natalies prescription records are not privileged because they are not confidential communications between patient and physician. We disagree. All evidentiary privileges are statutory or constitutional. There is no pharmacist-patient privilege in California, and state courts are not empowered to create new privileges. (Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 206 [The privileges set out in the Evidence Code are legislative creations; the courts of this state have no power to expand them or to recognize implied exceptions.].)

Nonetheless, in reviewing section 912, the Supreme Court has stated that the patients presentation of a physicians prescription to a registered pharmacist would not constitute a waiver of the physician-patient privilege because such disclosure is reasonably necessary for the accomplishment of the purpose for which the physician is consulted. (Rudnick v. Superior Court, supra, 11 Cal.3d at p. 932, quoting the comment of the Senate Committee on Judiciary to section 912, subd. (d).) Since the prescription is a privileged portion of the communication between physician and patient, logic dictates that the physician-patient privilege must afford protection to any records of physician-patient communication kept by the pharmacist. The pharmacist, under Rudnick, becomes a person who is authorized to claim the privilege by the holder of the privilege within the meaning of section 994 and cannot be compelled to disclose prescription records unless the holder has previously waived the privilege. (Id. at p. 932, quoting 994, subd. (b).)

The psychotherapist-patient relationship is similarly privileged and the reasoning of the Rudnick court extends to prescriptions issued by a psychotherapist.

William asserts that because this case involves the custody of two young children, the allegations of drug abuse are particularly relevant to the custody evaluation and should weigh against Natalies right to claim privilege. Privilege, however, operates as a bar to discovery of even relevant information. [Citation.] There can be no discovery of matter which is privileged. (Jones v. Superior Court (1981) 119 Cal.App.3d 534, 544, quoting Rudnick v. Superior Court, supra, 11 Cal.3d at p. 929; Koshman v. Superior Court (1980) 111 Cal.App.3d 294, 297 [relevancy is not a criterion in the protection afforded by the statues].) The privilege applies unless it is subject to a statutory exception or the privilege has been waived by its holder. (Koshman, at p. 297.)

Since the records are privileged, we turn to whether the privilege has been waived.

II

William argues that Natalie waived her right to assert the physician-patient and psychotherapist-patient privileges concerning prescription drugs because she voluntarily disclosed information regarding her medical conditions and prescriptions. The doctrine of waiver applies to all rights and privileges that a person is entitled to, including those conferred by statute. . . . (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 585; Civ. Code,  3513.) Waiver occurs if any holder of the privilege, without coercion, has disclosed a significant part of the communication. . . .  (Jones v. Superior Court, supra, 119 Cal.App.3d at p. 546, quoting 912, subd. (a).) It also may occur if the holder of the privilege fail[s] to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege. ( 912, subd. (a).)

When deposed by Williams attorney in October 2007, Natalie disclosed her medical conditions, including fibromyalgia, depression, and her need for pain management. She also disclosed her prescription history and method of filling her prescriptions. Her sole objection regarding privilege occurred when she was asked a specific question about her discussion with her doctor as to how often she was to take Vicodin; the objection claimed privilege only for words spoken between doctor and patient. It occurred after Natalie already had disclosed what drugs had been prescribed. Natalie continued to answer further questions regarding the maximum dosage listed on the prescription label, how often she takes the drugs, and where she obtained them. In freely discussing her medical conditions, the names of drugs she had been prescribed, how often she takes the drugs, and how she fills her prescriptions, Natalie disclosed a significant portion of her medical prescription history to William and his attorney. Doing so waived the privilege for purposes of this litigation as to the matters discussed. ( 912, subd. (a) [privilege waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.].)

Besides this waiver during the first deposition, another occurred when Natalie failed to claim privilege during the second deposition. At that time, she disclosed her prescriptions, medical conditions, drug usage, and the pharmacy used to obtain her medications. As we have noted, she claimed that her prescribed medications were filled only by Kanan Pharmacy. Neither she nor her attorney asserted a privilege regarding these communications. As such, Natalie has waived the physician-patient and psychotherapist-patient privileges on the subject for purposes of these proceedings. The trial court erred in upholding her assertion of the privileges with respect to pharmacy records.

Since we find that Natalie has waived the physician-patient and psychotherapist-patient privileges, for purposes of these proceedings, we need not reach alternative theories of waiver put forth by William, including the question of which party tendered the issue of Natalies medical conditions. We turn now to the scope of the waiver.

III

Natalie argues that even if she has waived her right to claim a statutory privilege, she retains the more general right to privacy protected by the state and federal constitutions. Of course, even a constitutional privilege may be waived (see Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 479), and a limited waiver has occurred in this case by Natalies responses at deposition which we have discussed.

Nevertheless, as a general proposition, even a partial waiver of a constitutional right to privacy should be narrowly, rather than expansively, construed. (See Fortunato v. Superior Court, supra, 114 Cal.App.4th at p. 482; Britt v. Superior Court (1978) 20 Cal.3d 844, 859.)

We do so in this case by limiting discovery to the interest William has shown to be compelling. That interest, which the state shares, is the best interest of the children of the parties, and is implicated by abuse, if any, of prescription medication for pain and depression that Natalie has taken within the period identified in the subpoenas. William has not shown a compelling need for access to prescription records for medications or medical conditions not related to pain or depression, and to the extent the subpoenas call for more, they are overbroad.

In balancing Natalies privacy rights with the interests of protecting the childrens welfare, the trial court must fashion an appropriate protective order or orders allowing discovery of prescription records for pain, depression, or both, from the pharmacies already identified. The court also must issue a protecctive order or orders to ensure the appropriate confidentiality of Natalies medical records in this litigation.

DISPOSITION

Let a peremptory writ of mandate issue requiring respondent court to vacate its order of May 5, 2008, which granted Natalies motion to quash subpoenas and enter a new and different order permitting discovery, consistent with this opinion. Each party shall bear its own costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] All further statutory references are to the Evidence Code unless otherwise indicated.

[2] We will refer to the parties by their first names for clarity. No disrespect is intended.

[3] Physical custody arrangements were subsequently modified by stipulated order in May 2007. This order is not contested.

[4] In oral argument, Williams counsel raised for the first time the issue of Williams request that Natalie undergo mandatory drug testing. We need not and do not address the issue in this opinion because such determinations are properly made in the first instance by the trial court.

[5] Dr. McCoy has not requested Natalies pharmacy records. Natalie concedes that she has waived her right to claim privilege regarding Dr. McCoys authority to request these records should he deem them relevant to the evaluation.