By Dillon Coil
NRS 49.225 and NRS 49.247 protect communications between a patient and his or her doctor and between clients and their marriage and family therapist as confidential. However, a patient who voluntary puts his physical or mental condition in issue in a lawsuit waives the protection of the doctor-patient privilege for communications with his doctor about that condition. Like other states, Nevada specifically amended its doctor-patient privilege statutes to create an express patient-litigant exception that directs the same or similar results as waiver.
Until the Court's recent decision in Mitchell v. Eighth Judicial District Court, 131 Nev. Advance Opinion 21, the Nevada Supreme Court had never addressed whether or how the waiver doctrine and/or the patient-litigation exception to the doctor-patient and family therapist-client privileges applies when the plaintiff puts the defendant's physical or mental condition at issue. Mitchell involved claims by a patient who experienced heart problems following a tonsillectomy. The plaintiff sued the doctor who performed the tonsillectomy, as well as the doctor's employer, for medical malpractice and negligent hiring and supervision. It is alleged that the doctor's misadministration of anesthesia during the surgery caused the seven-year-old's heart to fail.
During deposition, the doctor admitted to being addicted to Ketamine and Valium at the time of the operation, but claimed he did not operate on boy while under the influence. The doctor also admitted that after subsequent arrests from domestic violence and driving under the influence, he and his wife pursued marriage counseling and was treated for substance abuse. The plaintiff subsequently subpoenaed the doctor's counseling and substance abuse treatment records to which the doctor objected, asserting the doctor-patient and family therapist-client privileges. The district court overruled the objection, finding that the plaintiff's claims and the doctor's defenses placed the doctor's addiction in issue, thereby terminating the privileges. The doctor petitioned for a write of mandamus directing the district Court to sustain the privileges asserted.
Regarding the doctor-patient privilege, the Court concluded it was the plaintiff, not the doctor, who placed the drug addiction in issue. Thus, the Court concluded under the prevailing case law related to the doctor-patient privilege that the doctor-patient privilege remained intact in this instance. See Mill-Spex, Inc. v. Pyramid Precast Corp., 101 Nev. 820, 822 (1985). Likewise, the Court found that the neither the doctor nor his spouse put their marital counseling sessions in issue and, thus, the waiver doctrine did not apply to the asserted marital and family therapist-client privilege.
However, the Court was less forgiving when applying the patient-litigant exception to the facts. Citing NRS 49.245(3), the Court concluded that because the condition of the doctor during the surgery was an element of the claim, the patient-litigant exception to the privilege applies. Specifically, the Court found that although the plaintiff's condition did not implicate any element of the medical malpractice claim, the condition was directly relevant to the negligent supervision and hiring claims because the plaintiff must show that the doctor's employer knew or should have known the doctor was unfit. The Court noted that allegations the doctor was actively abusing drugs around the time of the surgery were not speculative, but grounded in the history of arrests, convictions, and admissions, all of which sufficiently established the doctor's addiction in close temporal proximity to the surgery. Citing R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994), the Court concluded the district court should undertake an in camera review of the requested medical records to determine what records should be provided and under what conditions. Accordingly, the Court conditionally granted the writ and directed the district court to perform an in camera review of the records.
