Case Name:  Parrish v. Rodriguez

 

Case No.:  1-14-CV260586

 

Plaintiff Vonna Whitten Parrish, individually and as successor in interest of decedent Jason David Whitten Lee, moves to quash subpoenas duces tecum issued by Defendant Beverly Rodriguez, M.D., on April 28, 2014, for records regarding Mr. Whitten from Alta Vista High School, Foothill College, Palo Alto Medical Foundation, Sutter Physicians Services and Medi-Cal.  In the alternative, Plaintiff seeks a protective order.  The notice of motion sets forth only the grounds that these subpoenas violate Plaintiff’s right to privacy and contain requests that call for irrelevant documents.  The memorandum argues additional grounds not set forth in the notice: overbreadth and the health care provider privilege. Defendant opposes, and moves for money sanctions against Plaintiff and Plaintiff’s counsel pursuant to California Code of Civil Procedure sections 1987.2(a) and 2017.020(b).

 

Mr. Whitten was 19 on August 28, 2012, when he went to see Dr. Rodriguez about depressive and anxiety symptoms.  Mr. Whitten reported that he had felt depressed since he was a child and that he had had thoughts of suicide.  Mr. Whitten grew up with a single mother who suffered an untreated mental illness, and he was raised in near-isolation.  Dr. Rodriguez prescribed Sertraline (Zoloft) to address Mr. Whitten’s depression and anxiety.  Plaintiff’s complaint against Defendant is that Defendant failed to properly monitor Mr. Whitten after prescribing him a drug, despite warnings that the drug increases suicidal thoughts in persons under the age of 25, such as Mr. Whitten.  Plaintiff claims malpractice on the part of Defendant, alleging that she acted carelessly and recklessly by prescribing Zoloft without adequately monitoring Mr. Whitten’s post-prescription behavior.  (Compl. ¶ 7.)  Plaintiff also alleges that because of the failure to adequately monitor the decedent after prescribing Zoloft, Mr. Whitten became aggressive, exhibiting severe mood changes and changes in behavior pattern, and suffered from suicidal ideation resulting in death by suicide. (Ibid. ¶ 9.)  Plaintiff is suing for the pecuniary loss of Mr. Whitten’s future earnings and earnings capacity, which he would have used to support Plaintiff. (Ibid. ¶ 11.)

 

On April 28, 2014, Defendant issued subpoenas for Mr. Whitten’s educational records to include all records relating to scholastics, including registration and attendance records, disciplinary records, student health and nursing records, results of examinations or tests taken, courses of study or curriculum, counseling, and transcripts.  Defendant also issued subpoenas for Mr. Whitten’s medical records.

 

On May 13, 2014, Plaintiff’s counsel sent correspondence to Defendant’s counsel in an attempt to meet and confer regarding the subpoenas.  Plaintiff’s counsel claimed that the requests were harassing and overbroad.  Plaintiff’s counsel demanded an immediate response because he had a deadline to file a motion to quash on May 15, 2014.  Defendant’s counsel responded on May 14, 2014, indicating that Plaintiff counsel’s attempt to meet and confer did not contain any substance as to why the requests were harassing or overbroad and that it did not contain suggestions for how the subpoenas should be limited.  Plaintiff filed the motion to quash on May 15, 2014.  Plaintiff then filed additional motions to quash, and Defendant argues that there was inadequate notice as to the deadline that opposing papers were required to be filed.

 

Meet and confer efforts occurred after the motion was filed.  On June 3, 2014, Plaintiff sent correspondence to Defendant requesting that the records be produced to Plaintiff’s counsel for a first look and that Plaintiff would then withhold any documents believed to be privileged.  (Reply Declaration of Counsel, Ex. 11.)  On June 4, 2014, Defendant rejected that proposal, and instead proposed that the subpoena be limited to the requested records from the age of 10 to the time of death.  (Id., Ex. 12.)  On the same day, Plaintiff asked to limit all prior subpoenas to the same time frame of age 10.  (Id., Ex. 13.)  Defendant then responded “We will agree to limit all subpoenas in time to only request records from age 10 to the time of death”, but also qualified that proposal by saying “if you will reconsider your request to limit the scope of the subpoenas, and instead agree only to the limitation of time, then I will go ahead and contact Quest Discovery Services and ask that the subpoenas be amended to reflect this change.”  (Id., Ex. 14.)  On June 5, Plaintiff asked for a clarification and asserted that the scope should be limited.  (Id., Ex. 15.)  On June 9, Defendant withdrew its agreement to limit the records to age 10 because of the concern that childhood issues would be relevant.  (Id., Ex. 16.)  On June 19, Plaintiff gave her authorization to have Community Health Awareness Council to disclose information about Mr. Whitten.  (Id., Ex. 18.)

 

1. Motion to Quash

 

1. Invasion of Personal Privacy

 

The right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded. (Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, p. 62.)  The right of privacy does not survive death.  (Ibid.)

 

Plaintiff relies on the principle that families have a right not to be embarrassed or humiliated by the outrageous display or exposure to public view of the remains of a loved one. (Catsouras v. Dep’t of California Highway Patrol (2010) 181 Cal.App.4^th 856, pp. 873-874.)  However, Catsouras involved an issue of whether a family member could assert a privacy claim with respect gruesome death images of the decedent that were disseminated out of sheer morbidity or gossip.  (Ibid. at p. 874.)  Catsouras does not apply to this case because the subpoena is not targeting images of Mr. Whitten’s death, but rather information about his past.  Therefore, Plaintiff cannot assert a privacy claim.

 

1. Patient-Physician Privilege

 

Patient-physician privilege does survive death, and can only be waived by a decedent’s personal representative.  (Evid. Code, § 993(c); Hale v. Superior Court (1994) 28 Cal.App.4th 1421, p. 1424.)  However, no patient-physician privilege exists as to a communication relevant to an issue concerning the condition of the patient if any party claiming through or under the patient had tendered such issue.  (Evid. Code, § 996(b).)  The purpose of physician-patient privilege is to preclude humiliation of patient that might follow disclosure of his ailments; when the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for privilege.  (City & County of San Francisco v. Superior Court In and For City and County of San Francisco (1951) 37 Cal.2d 227, p. 232.)  The bringing of the action to recover damages for personal injuries constitutes a waiver of the privilege, provided the testimony is material to the issues. (Phillips v. Powell (1930) 210 Cal. 39, p. 42.) In Rittenhouse v. Superior Court the court held that the administrator of the decedent’s estate did not tender the issue of decedent’s mental health in a probate proceeding because the respondent, not the petitioner, injected the issue of the decedent’s mental health into the proceedings, even though evidence of decedent’s mental health was relevant. ((1991) 235 Cal.App.3d 1584, p. 1591.)

 

Plaintiff has waived the patient-physician privilege by filing this action. Plaintiff has alleged that the cause of Mr. Whitten’s suicide, wild mood swings, and aggression was the failure of Defendant to monitor him.  Mr. Whitten had told Defendant that these behavior issues had existed since he was a child: information that Defendant knew when she allegedly failed to monitor Mr. Whitten.  Therefore, Plaintiff’s claim waives the privilege in respect to Mr. Whitten’s medical files.

 

1. Overbreadth

 

Plaintiff claims that Defendant failed to monitor Mr. Whitten after Defendant prescribed an antidepressant to treat his depressive disorder and anxiety disorder.  Plaintiff claims that as a result of the failure to monitor, Mr. Whitten committed suicide.  Defendant’s position is that other factors in Mr. Whitten’s life contributed to his desire to commit suicide, as evidenced by his medical records and his reports to Dr. Rodriguez.

 

The Civil Discovery Act allows a party to “obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action [. . .] if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.  Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”  (Cal. Code Civ. Proc. § 2017.010.)  Any doubt about discovery is to be resolved in favor of disclosure.  (Advance Modular Sputtering, Inc v. Superior Court (2005) 132 Cal.App.4^th 826, p. 837.)  Information is relevant to “subject matter” of an action if information might reasonably assist party in evaluating the case, preparing for trial, or facilitating settlement.  (Jessen v. Hartford Cas. Ins. Co. (2003) 111 Cal.App.4th 698, pp. 711-712.)  The extent of the pertinent subject matter can vary with the circumstances, and the scope of permissible discovery is one of reason, logic, and common sense.  (Ibid. at p. 712.)

 

Plaintiff’s argument as to why the requests are overbroad is that the parties had originally agreed that the age limit of 10 years was reasonable and that Defendant’s rejection was unreasonable, unwarranted, oppressive, and harassing.  However, the alleged breach of the agreement, if there was one, does not affect whether Defendant is entitled to discovery.

 

i.     Educational Records

 

Defendant argues that it is important to review Mr. Whitten’s attendance records, disciplinary records, student health records, results of examinations and tests taken, courses of study, transcripts and counseling records to understand fully how events in his life affected his ability to concentrate in school or his motivation to continue school, which in turn affected the reports he made to Dr. Rodriguez as to why he was seeking treatment.  Defendant argues that if there were events in Mr. Whitten’s childhood not revealed to Dr. Rodriguez, they could nonetheless have an effect on his response to the treatment she prescribed, as well as her role in his treatment.

 

The requested information is relevant because it is reasonably likely to lead to the discovery of admissible evidence. Defendant asserts that the real causes of Mr. Whitten’s death were factors outside of Defendant’s control, and that the information contained in the educational records would help determine the extent of those outside factors and that if they had been disclosed to Defendant, Defendant would have acted differently. The information requested is relevant because Mr. Whitten mentioned in his discussions with Defendant that he had felt significantly depressed since he was a child.  (Def. Opp. p. 1.)  Therefore, the motion to quash subpoenas as to the educational records is DENIED.

 

ii.     Medical Records

 

Defendant argues that the medical records are discoverable because Mr. Whitten may have had conditions or may have been taking medication that could have caused or impacted his mood episodes.  Any history of neurological conditions, accidents, traumatic events, child abuse, and domestic violence can also cause psychological issues, which ultimately impact the patient’s psychiatric condition. Defendant asserts that because Mr. Whitten reported intermittent alcohol consumption and use of THC, it is important to review the entirety of his medical history to determine the effects certain drugs may have had on his mood disorders.

 

Plaintiff argues that the disclosure of information from Community Health Awareness Council will provide adequate information as to Mr. Whitten’s’s mental health, and that any additional information is overbroad.

 

The information contained in the medical records is relevant to determine the validity of Defendant’s theory of the case. Even though Plaintiff believes that the disclosure from Community Health Awareness Council will provide adequate information, the question is whether the information sought is reasonably calculated to lead to admissible evidence.  The discovery requested is relevant because Mr. Whitten mentioned in his discussions with Defendant that he felt significantly depressed since he was a child. (Def. Opp. p. 1.)  Therefore, the motion to quash subpoenas as to the medical records is DENIED.

 

1. Protective Order

 

Plaintiff has moved for a protective order, but has not proposed any terms for the order. Defendant argues that Plaintiff has not shown good cause as to why this motion should be granted and that Plaintiff has failed to distinguish this case from other wrongful death, medical malpractice or personal injury cases involving medical records and medical history.  Plaintiff argues in reply that there were proposed terms, and that those terms would be to limit the subpoenas from age 10.

 

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.  This motion shall be accompanied by a meet and confer declaration under [CCP] Section 2016.040.” (Cal. Code Civ. Proc., § 2031.060(a).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Ibid. § 2016.040.)  The party seeking a protective order bears the burden to show good cause for the requested order if it would result in unwarranted annoyance, embarrassment, or oppression.  (Ibid. § 2031.060(b); Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, p. 255.)  The concept of “good cause” requires a showing of specific facts demonstrating the circumstances justifying the relief sought.  (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, p. 819.)

 

Plaintiff has not shown good cause.  Plaintiff requested that the information be protected because it would be harassing and oppressive, but Plaintiff does not have a privacy interest in the material, nor a patient-physician privilege interest in the material.  Plaintiff filed this medical malpractice suit, and squarely placed these matters at issue. Therefore, the motion for a protective order is DENIED.

 

1. Monetary Sanctions

 

1. Defendant’s Request

 

Defendant argues that Plaintiff and her counsel were not substantially justified in making her motion because the right of privacy no longer exists because Mr. Whitten died.  In addition, Defendant argues that Plaintiff’s counsel failed to meet and confer in a reasonable and good faith manner.  Defendant has stated that its reasonable attorney’s fees and costs amounted to $925.00.

 

The Civil Discovery Act imposes mandatory monetary sanctions on a party unsuccessfully making a motion for a protective order, unless an exceptional finding is made: that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Cal. Code Civ. Proc., § 2017.020(b).)  “Substantial justification” is generally defined as being justified to a degree that could satisfy a reasonable person, or stated another way, that it has a reasonable basis both in law and fact.  The burden for proving ‘substantial justification’… is on the losing party claiming that it acted with “substantial justification.”  (Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4^th 1424, 1434-1435.)

 

Plaintiff has not met the burden to show that she acted with substantial justification.  Therefore, the request for sanctions is GRANTED against Plaintiff only, who shall pay Defendant within fifteen days of notice the sum of $925.00 as and for attorney fees

 

1. Plaintiff’s Request

 

Plaintiff requests sanction on the basis that Defendant failed to adhere to the agreement that discovery would be limited on the basis of age.  However, Plaintiff requested this sanction in the conclusion of its reply brief.  Plaintiff is not the successful party on these motions.

 

A request for a sanction must be set forth in the notice of motion and must identify every person, party, and attorney against whom the sanction is sought, and the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction. (Cal. Code Civ. Proc., § 2023.040.)

 

Plaintiff did not comply with the requirements of CCP § 2023.040 in requesting for a sanction. Therefore, Plaintiff’s request for monetary sanction is DENIED.