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Fagen v. Grand View University

Supreme Court of Iowa

April 3, 2015

Grand View University, NPI Security, and ROSS IDDINGS, Appellee

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Appeal from the Iowa District Court for Polk County, Rebecca Goodgame Ebinger, Judge. A party seeking damages for mental disability and mental pain and suffering appeals an order by the district court requiring him to sign a patient's waiver releasing his prior mental health records to the tortfeasor.


Roxanne Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for appellant.

Michael Carmoney and Allison J. Frederick of Carmoney Law Firm, PLLC, Des Moines, for appellee.

Paige Fiedler of Fiedler & Timmer, P.L.L.C., Urbandale, and Thomas J. Duff of Duff Law Firm, P.L.C., Des Moines, for amicus curiae Iowa Association for Justice.

Ryan G. Koopmans of Nyemaster Goode, P.C., Des Moines, for amici curiae Iowa Association of Business and Industry and the Iowa Defense Counsel Association.

All justices concur except Zager, J., who concurs in result only, and Mansfield, J., Cady, C.J., and Waterman, J., who dissent.


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WIGGINS, Justice.

An injured party brought a tort action claiming monetary damages for his injury. Part of his damage claim included damages for mental pain and mental disability. Based on this claim, the district court required the injured party to sign a patient's waiver, allowing the tortfeasor access to the injured party's mental health records without restriction. We now adopt a protocol balancing a patient's right to privacy in his or her mental health records against a tortfeasor's right to present evidence relevant to the injured party's damage claims. Accordingly, we reverse the order of the district court requiring the injured party to sign an unrestricted patient's waiver and remand the case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

On April 12, 2012, Fagen was in his dormitory at Grand View University when he and other male students, including Iddings, entered the common area of his dormitory from an open doorway. Another student physically forced Fagen to the ground. The students then wrapped Fagen in a discarded carpet remnant that was in the common area. The students secured the carpet around Fagen with duct tape. While encased in the carpet, Fagen was unable to move his arms and legs. The students then picked Fagen up and set him upright in a corner. While propped up in the corner, the students tied a rope around the carpet, threw food and trash at Fagen, and kicked and punched him.

Then, the students lowered Fagen to the ground, rolled him to the other side of the room, and propped him up against the opposite corner. At that point, Fagen fell over. Unable to free his arms from the carpet, he hit the ground face first and shattered his jaw. An ambulance took Fagen to the emergency room of Mercy Hospital. Due to the severity of his injuries, Mercy immediately arranged to transport him to the University of Iowa Hospitals and Clinics for treatment. Fagen underwent surgery at the University of Iowa hospital.

On August 29, Fagen filed a petition against six of the students involved in the assault as well as Grand View. Fagen amended his petition on March 3, 2013, adding Grand View's security company, NPI Security, as a defendant. Between May 2013 and the time of this appeal, Fagen dismissed five of the six individual defendants from this action. In his petition, Fagen asserts an assault and battery claim against Iddings. His claims against

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Grand View and NPI are for negligence and premises liability.

Fagen alleges in his petition that he has suffered severe and painful permanent injuries, and has endured and will continue to endure great physical and mental pain, physical and mental disability, and loss of enjoyment of life. He also alleges he has in the past and will in the future incur expenses for medical care, hospitalization, physical therapy, and medication for the treatment of said injuries. Fagen also alleges the assault caused a loss of time from his studies and a loss of earning capacity. He seeks monetary damages for his injuries.

In his deposition, Fagen disclosed he underwent treatment for anger management when he was in fourth through sixth grades. Iddings requested Fagen provide him with a release, waiving Fagen's privilege to his mental health records under Iowa Code section 622.10(3)( a ) (2013), and allowing Iddings access to the mental health records pertaining to the treatment. Fagen refused. Iddings then filed a motion in district court to compel discovery of Fagen's mental health records.

Fagen filed a resistance to the motion, arguing the patient--physician privilege protected the mental health records from his early childhood and the defendant's request for the records violated his constitutional right to privacy. He stated he had not received mental health treatment because of the assault, which is the subject of this case. Fagen argued in his resistance he is only claiming damages for what he called garden-variety pain and suffering and mental distress and not for a specific psychiatric or psychological condition. At the hearing, he told the court he did not intend to introduce any expert testimony regarding the emotional damages. He also stated he would only ask the jury for damages for garden-variety pain and suffering and mental distress, which he defined as the emotional suffering any normal person would have experienced if they had been the victim of an assault like the one he experienced.

Fagen also argued he had a constitutional right to privacy in those records that created an absolute patient--psychotherapist privilege. Fagen argued only a showing of necessity or compelling need could overcome the privilege, neither of which exists in Iddings's request.

The district court agreed with Iddings, finding Fagen waived his privilege to his mental health records by putting his mental well-being at issue in the case. The court also found Iddings's request did not violate Fagen's constitutional right to privacy. The district court ordered Fagen to sign an unrestricted patient's waiver for records within five days of the entry of the order.

Fagen did not execute the waiver, but rather filed an application for interlocutory appeal on this discovery issue. We granted the application.

II. Issue.

In this appeal, we are required to decide if a tortfeasor in a civil case is entitled to a signed patient's waiver from the injured party to obtain that party's mental health records when he or she alleges in the petition a claim for mental disability or mental distress.

III. Scope of Review.

We typically review discovery disputes under an abuse of discretion standard. See State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). However, because this case involves the statutory interpretation of Iowa Code section 622.10, we review for corrections of errors at law. Ashenfelter v. Mulligan, 792 N.W.2d 665, 668--69

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(Iowa 2010). " Moreover, we have consistently interpreted this statute liberally to accomplish its goal of fostering candid communications between doctor and patient." Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996). We review the constitutional issue de novo. State v. Reyes, 744 N.W.2d 95, 99 (Iowa 2008).

IV. Claims of the Parties.

We begin our analysis by examining the arguments urged by the parties in this appeal. Iddings contends once Fagen alleged the assault caused him to experience a mental disability and suffer mental pain and anguish, he became automatically entitled to a waiver to look at all of Fagen's mental health records, without limitation. Fagen argues that because he is only seeking damages for the mental pain and suffering that any normal person would have experienced because of the assault he experienced, and he is not calling as a witness a mental health professional to support his claim, Iddings is not entitled to obtain Fagen's mental health records. Both are urging an absolute rule. We disagree with both positions.

As to Iddings's contention, we agree there are times a plaintiff's mental health records are essential for a tortfeasor's defense against a claim. However, allowing a tortfeasor to obtain all the mental health records of an injured party is not appropriate in all circumstances. For example, assume a tortfeasor injured a fifty-year-old person in a car collision and the injured person claims mental disability and mental pain and suffering in an action against the tortfeasor. Would the tortfeasor automatically be entitled to review the injured person's mental health records concerning counseling the injured party received as a child in connection with his parent's divorce forty years earlier? We think probably not.

Fagen's position that his mental health records are confidential and therefore absolutely privileged is also off the mark. Let us change the hypothetical facts assumed above. Now the tortfeasor seeks access to the fifty-year-old injured party's mental health records pertaining to counseling the injured party received for anxiety just six months prior to the collision. Even if the injured party is only seeking mental pain and suffering that any normal person would have experienced because of the collision and not calling a mental health professional to support his or her claim, we think it may be proper for the tortfeasor to obtain those records to present a proper defense.

Thus, it is important for us to strike a proper balance between Iddings's and Fagen's contentions. We can strike this balance by examining the constitutional and statutory parameters of the patient--physician privilege as it pertains to mental health providers and our rules of discovery.

V. Constitutional Parameters of the Patient--Physician Privilege as it Pertains to Mental Health Providers.

In the context of a noncriminal case, we have discussed the patient--physician privilege as it pertains to mental health providers. McMaster v. Iowa Bd. of Psychology Exam'rs, 509 N.W.2d 754, 758-761 (Iowa 1993). McMaster discussed the privilege in the context of the board of psychology examiners subpoenaing a patient's records from a psychologist who was not under investigation. Id. at 755. The first thing we noted concerning the privilege was that under Iowa law patients have a constitutional right to privacy in their medical records, but the privilege is not absolute. Id. at 758--59. Rather, the privilege is qualified and to determine if the privilege

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attaches we use a balancing test. Id. at 759. " The privacy interest must always be weighed against such public interests as the societal need for information, and a compelling need for information may override the privacy interest." Id. (emphasis added) (internal quotation marks omitted).

In McMaster, we adopted a five-part protocol for determining whether a patient's constitutional privacy interest in his or her mental health records must yield to the competing interests of the board. Id. at 759--60. In a ...

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