Case Number: BC516474 Hearing Date: June 23, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CHERI LUCAS,
Plaintiff(s),
vs.

ARTHUR GLOSMAN, D.D.S., ET AL.,

Defendant(s).

CASE NO: BC516474

[TENTATIVE] ORDER

Dept. 92
1:30 p.m. — #22
June 23, 2014

The Court will review Dr. Mikulics’s file in camera to determine which records must be produced. Plaintiff is ordered to make the file available for in camera inspection at the hearing.

Plaintiff, Cheri Lucas filed this action against Defendants, Arthur Glosman, D.D.S., et al. for damages arising out of dental malpractice. Plaintiff’s claimed damages include emotional distress, anxiety, and depression. Plaintiff contends Dr. Stephanie Mikulics prescribed Wellbutrin for her to treat the depression she is suffering as a result of the alleged dental malpractice. As a result of that prescription, Defendant propounded a deposition subpoena for production of business records on Mikulics’s office, seeking production of Plaintiff’s medical records.

At this time, Plaintiff moves to modify the subject deposition subpoena. Plaintiff concedes the records relating to the Wellbutrin should be produced, but contends the subpoena is overbroad and should be modified. Plaintiff contends Dr. Mikulics is her gynecologist, and contends her gynecological records are not relevant to this action.

Defendant contends Plaintiff listed Dr. Mikulics as her primary care physician when she checked in for dental surgery. Defendant also contends he has learned that Plaintiff suffers from Raynaud’s Syndrome, and argues he needs Plaintiff’s primary care medical records to determine whether Raynaud’s Syndrome or any other medical condition could be a factor contributing to her claimed depression.

Where a plaintiff sues for personal injuries, the physician-patient and psychotherapist-patient privileges are waived for conditions “tendered” in the action (Ev.C. §§ 996, 1016), or related to the issue of proximate causation (Ev.C. § 999, ¶ 6:36.2). Here, the plaintiff’s privacy rights are subordinated to the right of discovery as to relevant medical history. But this does not open up plaintiff’s “lifetime” medical history. “An implicit waiver of a party’s constitutional [privacy] rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit.” Plaintiffs can still assert the right of privacy to prevent disclosure of confidential medical information not directly relevant to the lawsuit. Vinson v. Super.Ct. (1987) 43 C3d 833, 842.

Where plaintiff makes no claim of mental or emotional distress, a “garden variety” personal injury action seeking damages for “pain and suffering” does not place plaintiff’s mental condition in issue. Plaintiff’s right to privacy in his or her postinjury psychotherapeutic records outweighs any need for discovery thereof. Davis v. Sup.Ct. (Williams) (1992) 7 CA4th 1008, 1016. Notably, the Davis court went on to hold that, should the plaintiff choose to broader her claim to include emotional distress damages above and beyond the typical pain and suffering associated with the subject accident, the analysis would be different. It does not appear that Plaintiff herein is suing merely for garden variety pain and suffering occurring as a result of the malpractice; indeed, she alleges that she suffered from depression so severe that she needed prescription medication, and that the depression was caused directly by the malpractice at issue.

Defendant has shown good cause to discover other potential causes for the depression. This issue is complicated, however, by the fact that Plaintiff did not treat for depression with a psychotherapist. She treated instead with Dr. Mikulics, whom she claims is her OB/GYN, but whom she listed as her primary care physician on her admission records with Defendant. Notably, it is odd for an OB/GYN to prescribe anti-depressants due to depression caused by dental malpractice.

When the Court orders production of documents relating to a condition other than the condition at issue in the lawsuit, on a showing of good cause, the Court often conducts an in camera inspection of the subject records to determine which records should be produced. See Slagle v. Super.Ct. (1989) 211 CA3d 1309, 1314–1315. The Court is inclined to do so in this case. Obviously, any records relating only to Plaintiff’s OB/GYN treatment over the years are not relevant at all to her claims of damages in this case. If, however, the Court, in its review of the medical records, finds records pertaining to other potential causes of Plaintiff’s depression, such as chronic illness, etc., the Court will order those records produced, as they are directly relevant to Defendant’s defense of the claim for damages, and therefore there is good cause for production of those records.

Dated this 23rd day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court