Boling v. Superior Court

The motion to compel production of the records was made after the hospital’s response to the subpoena had been communicated to defendant by notary public Cook. Defendant stated in its notice of the motion as follows:

The motion was “for an order requiring plaintiff and El Camino Hospital to produce all medical records... pertaining to all treatment rendered to Mark Wayne Boling, plaintiff’s decedent, at El Camino Hospital,... and to permit inspection and photocopying by the attorneys for defendant ] or a representative from Robert A. Cook, Notary Public. [¶] This motion is based on the grounds that these documents, and all of them, constitute or contain evidence material and relevant to this action and that they are not privileged.... [¶] [S]aid records are needed in connection with the defense of the pending matter herein and are necessary to the administration of justice.” (Italics added.)

The notice of motion was addressed on its face to “plaintiff and to her attorneys of record and to El Camino Hospital,” but the record does not show that the moving papers were served on the hospital. Plaintiff filed nothing in opposition to the motion, on which respondent court heard brief oral argument. No appearance was made on behalf of El Camino Hospital. Defendant’s attorney argued that the hospital’s so-called “psychiatric records” were discoverable because they were not privileged. Plaintiff’s attorney had not seen them, and he had no idea what they showed, but he in effect claimed the psychotherapist-patient privilege on the basis of the hospital’s view that it applied. (See fn. 1 and the accompanying text, ante.) No one mentioned Welfare and Institutions Code section 5328, which the hospital had cited as an alternative basis for nondisclosure of the so-called “psychiatric records.” (See ibid.) Respondent court accepted defendant’s view that the records were not privileged, and granted the motion from the bench.

Review

We have concluded that the discovery order cannot stand on the present record, and that a peremptory writ of mandate must be issued as prayed. Our reasons are stated under the captions enumerated below.

(1) The Psychotherapist-patient Privilege

The parties pursue the positions expressed by their respective attorneys at the oral argument in respondent court, which was effectively limited to plaintiffs claim of the psychotherapist-patient privilege. It is undisputed that her deceased son was the “patient” for purposes of the privilege. (See Evid. Code, § 1011 [defining “patient”].)^[2] Plaintiff claims it, as to El Camino Hospital’s “psychiatric records” concerning him, pursuant to section 1014.^[3] Defendant stands on its view (and respondent court’s) that the decedent’s mental condition is relevant because it has been placed in issue by plaintiffs wrongful death action as such, and that the “psychiatric records” are consequently not privileged by reason of the exception provided in section 1016, subdivision (d).^[4]

The above-quoted reasoning of the Lifschutz court speaks to “section 1016” at large, without limitation to any of its subdivisions. (See In re Lifschutz, supra, 2 Cal.3d 415 at p. 435.) The recorded history of the pertinent privilege statutes indicates the Legislature’s intent to effectuate good cause for the survival of the psychotherapist-patient privilege on the death of the patient, and for its subsequent exercise or waiver as the “interest” of his “estate” might warrant. (See Cal. Law Revision Com. coms, to Evid. Code, §§ 1013 and 993, 29B West’s Ann. Evid. Code (1966 ed.) pp. 620, 597-598.) There is accordingly no reason that the mere commencement of an action for his wrongful death should operate as an “automatic waiver” of the privilege. The commencement of plaintiff’s action did not in itself have that effect, and the privilege may still be claimed.

According to the present record, however, it has not yet been claimed by anyone with standing to assert it. Section 1014 permits the psychotherapist-patient privilege to be claimed by the “holder of the privilege” (id., subd. (a)), or by a person claiming it with the holder’s authorization (subd. (b)), or by the psychotherapist in certain limited circumstances (subd. (c)), but by no one else. (See fn. 4, ante.) Petitioner made it clear in respondent court that it was she who was claiming it. She was accordingly required to show that she is the “holder of the privilege” within the meaning of subdivision (a) of section 1014.

For purposes of the psychotherapist-patient privilege, the term “holder of the privilege” is defined in section 1013.^[5] Subdivision (c) of that

Plaintiff did not show that she is the decedent’s “personal representative” in that sense. The fact is neither alleged nor imported in her amended complaint. Her attorney casually referred to her as “the personal representative” when he was arguing defendant’s motion, but he did not establish that she is her son’s executrix or administratrix. She thus failed to show that she was the “holder of the privilege” within the meaning of section 1013, subdivision (c), which meant that she did not validly claim it pursuant to section 1014, subdivision (a).

At that point, however, the records in question remained “subject to a claim of privilege” within the meaning of section 916, subdivision (a), and subject to discovery pursuant to subdivision (b) of that section^[6] Respondent court was not “instructed” to “permit disclosure” of

El Camino Hospital is the “person from whom the information is sought” within the meaning of subdivision (a)(1) of section 916, but it is not a “person authorized to claim the privilege” within that meaning unless it is “authorized. . .by the holder of the privilege.” (§ 1014, subd. (b).) Subdivision (a)(1) does not apply because the latter fact was not shown. The hospital was also not a “party to the proceeding” initiated by defendant’s motion (see fn. 6, ante) because there was no proof that it had been given notice and it did not appear at the hearing. The failure of plaintiffs claim of the privilege consequently meant that there was then “no party to the proceeding who is a person authorized to claim the privilege,” and that subdivision (a)(2) did not apply. For failure of either of the conditions it specifies, subdivision (a) operated to reserve the yet-unwaived privilege and to bar the discovery order at that point. The order must therefore be vacated.

This result requires a discussion of possible further proceedings in respondent court because it has the limited effect of preserving the confidentiality of the hospital’s “psychiatric records” for the time being, and pursuant to section 916, subdivision (a), only. They may yet be discoverable by defendant if it is established that there is no person in existence who can claim the psychotherapist-patient privilege. (§ 916,

(2) Welfare and Institutions Code Section 5328, Subdivision (f)

This statute provided at pertinent times as follows: “5328. All information and records obtained in the course of providing services under Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7000), to either voluntary or involuntary recipients of services shall be confidential. Information and records may be disclosed only:.. . (f) To the courts, as necessary to the administration of justice.”^[8]

Defendant effectively acknowledged the statute, and undertook to invoke the subdivision (f) exception, by reciting in the notice of its discovery motion that the records in question were “necessary to the administration of justice.” The challenged discovery order explicitly cites the statute and paraphrases the same recital, but neither the statute nor the exception was mentioned at the hearing on the motion. The order is thus based on the mere assumption that the exception automatically applied if respondent court ruled that the records were not protected by the psychotherapist-patient privilege. Our annulment of the discovery order eliminates the effect of the assumption because it voids the ruling.