Mitchell v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Apr. 30, 2015)

Bunting experienced heart problems following a tonsillectomy performed by Dr. Mitchell. Bunting’s guardian ad litem, Ravella, sued Mitchell and Mitchell’s employer for medical malpractice and negligent hiring and supervision, respectively. Ravella’s complaint alleged that Mitchell’s misadministration of anesthesia during the surgery caused then-seven-year-old Bunting’s heart to fail. Bunting survived, but his heart now beats with the help of a pacemaker.

At a deposition, Mitchell admitted that at the time he operated on Bunting he was addicted to Ketamine and Valium, which he had abused intermittently for years. Mitchell denied operating on Bunting—or any patient—while under the influence of drugs or alcohol. But, three months after Bunting’s tonsillectomy, Mitchell was arrested for domestic violence while high on drugs, and three months after that, Mitchell was arrested for driving under the influence. Mitchell was convicted of both offenses. He disclosed in the deposition that, after his arrests, he and his wife pursued marriage counseling and that he was treated for substance abuse by two different doctors, first on an outpatient, then on an inpatient basis.

RaveIla posited that Mitchell was impaired when he operated on Bunting and that Mitchell’s employer should have recognized his addictive behavior and prevented him from treating patients. Seeking support for her position, Ravella subpoenaed Mitchell’s counseling and substance abuse treatment records. Mitchell objected, citing the doctor-patient and family therapist-client privileges. The district court overruled Mitchell’s privilege claims. It held that Ravella’s claims and Mitchell’s and his employer’s defenses to them placed Mitchell’s drug addiction in issue in the litigation, thereby terminating the privileges that originally attached to his communications with his doctors and with his and his wife’s family therapist. Mitchell sought an extraordinary writ directing the district court to protect as privileged counseling and medical records relating to his substance abuse.

NRS 49.225 and NRS 49.247 protect as privileged confidential communications between a patient and doctor and between clients and their marriage and family therapist. These privileges initially attached to Mitchell’s doctor-patient and marriage and family therapist-client communications. The issue is whether these confidential communications lost their privileged status when Mitchell’s drug addiction became relevant to Ravella’s malpractice and negligent hiring and supervision claims.

The Nevada Supreme Court noted that a patient who voluntarily puts his physical or mental condition in issue in a lawsuit loses the protection of the doctor-patient privilege for communications with his doctor about that condition. Referred to as waiver by placing in issue or the in-issue or at-issue waiver doctrine, this judicially developed rule promotes fairness and discourages abuse of the privilege; it prevents the patient from putting his physical or mental condition in issue and then asserting the privilege to prevent an adversary from obtaining evidence that might rebut the patient’s claim. Nevada has amended its doctor-patient privilege statutes to create an express patient-litigant exception that, depending on the form of the exception statute, directs the same or a similar result as the at-issue waiver doctrine. See NRS 49.245(3).

The Court reasoned that Mitchell did not place his drug addiction in issue in the underlying malpractice suit; Ravella did. Analyzed purely as a matter of waiver, Mitchell’s doctor-patient privilege thus remained intact and was not affected by Ravella’s malpractice and negligent supervision claims. The Court went on to consider Nevada’s statutory patient-litigant exception.

Regardless of who raised the issue of the patient’s condition, for the patient-litigant exception to apply, the party seeking to overcome the privilege still must show that the condition of the patient is an element of a claim or defense in the proceeding. The Court indicated that relevance alone does not make a patient’s condition an element of a claim or defense. At minimum, the patient’s condition must be a fact to which the substantive law assigns significance.

The Court concluded that Mitchell’s drug addiction was not an element of Ravella’s malpractice claim against him. To establish medical malpractice, a plaintiff must show that: (1) . . . the doctor’s conduct departed from the accepted standard of medical care or practice; (2) . . . the doctor’s conduct was both the actual and proximate cause of the plaintiffs injury; and (3) . . . the plaintiff suffered damages as a result. While Mitchell’s drug addiction may have been relevant, it was not an element of Ravella’s medical malpractice claim.

The Court reached the opposite conclusion with respect to Ravella’s negligent hiring and supervision claims. Unlike her malpractice claim against Mitchell, Ravella’s negligent hiring and supervision claims against his employer required her to establish that the clinic knew or should have known that Mitchell was unfit for the position he held. For the purposes of NRS 49.245(3), this made Mitchell’s condition an element of Ravella’s negligent hiring and supervision claims.

The Court conditionally granted the writ and directed the district court to review the doctor-patient records in camera and enter such orders respecting their production and use consistent with the Court’s opinion.

The Court determined that no basis existed to overcome the privilege that attached to Mitchell’s and his wife’s confidential communications with their marital and family therapist under NRS 49.247. Neither Mitchell nor his wife put their counseling sessions in issue in the litigation by RaveIla against Mitchell and Mitchell’s employer. The at-issue waiver doctrine, therefore, did not apply, for the same reasons it did not apply to Mitchell’s medical records.

Furthermore, no issue respecting the treatment provided by the Mitchells’ marital and family therapist was implicated, much less an element of a claim or defense, in this case. For that reason, the Court held that the exception did not apply and ordered the district court to grant a protective order prohibiting discovery of the Mitchells’ marriage and family therapy sessions.