BROWN Et Al. v. HOWARD Et Al.

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 16, 2015

In the Court of Appeals of Georgia
A15A1000. BROWN et al. v. HOWARD et al.

BRANCH, Judge.

Courtney Howard sued various medical providers, alleging that they committed

negligence during the delivery of Howard’s daughter Sahara, thereby causing a severe

brain injury to the child. During the litigation, the medical providers sought discovery

of Howard’s own medical records, which led to a dispute about whether and to what

extent certain of the requested documents were protected from discovery by a

privilege. The medical providers appeal the trial court’s ruling that most of the subject

documents are privileged; they further contend the trial court erred by failing to

require a privilege log that specified the matters that were privileged and the

applicable privilege. For the reasons that follow, we reverse and remand with

direction.
 This Court reviews a trial court’s decision as to discovery matters, including

the application of a privilege, for an abuse of discretion. Etowah Environmental

Group v. Walsh, 333 Ga. App. 464, 475 (3) (774 SE2d 220) (2015) (attorney-client

privilege); Wiles v. Wiles, 264 Ga. 594, 598 (2) (448 SE2d 681) (1994) (psychiatrist-

patient privilege). Further, we also may review the documents at issue to determine

whether the trial court correctly applied the privilege. See, e.g., Plunkett v. Ginsburg,

217 Ga. App. 20, 21 (456 SE2d 595) (1995); Annandale at Suwanee v. Weatherly,

194 Ga. App. 803, 804 (392 SE2d 27) (1990).

In her suit, Howard alleged that she became pregnant in late 2010 and that her

pregnancy proceeded normally for 27 weeks. At that point, due to certain symptoms,

Howard presented to Wellstar Cobb Hospital, but the fetus was found to be doing

well and Howard was discharged home early in the morning of May 31, 2011. On

June 3, Howard returned to Wellstar when her “membranes spontaneously ruptured,”

but tests at the hospital did not confirm the rupture and Howard was discharged at

1:40 a.m. on June 4. On June 7 at 7:40 p.m., Howard returned a third time, this time

with lower abdominal pain. Tests taken as early as 1:20 a.m. and again at 3:30 a.m.

on June 8 indicated a need for an immediate delivery of the child, but the child was

not delivered until approximately 6:00 a.m. Howard alleges that the medical providers

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were negligent in providing care thereby causing the child to sustain a severe brain

injury.

During discovery, the medical providers asked Howard to produce all of her

medical records from age 10 to the present, and requested that she identify all

treatment she had received from psychologists, psychiatrists, clinics, and all other

medical providers. In response, Howard objected on the ground that the request was

overly broad and unduly burdensome but not on the ground of privilege.1 Howard was

then deposed, during which she revealed that she smoked as many as four joints of

marijuana a day prior to learning that she was pregnant and that she was further

exposed to other people smoking marijuana during the remainder of her pregnancy;

she also admitted resuming smoking marijuana after she delivered the child. She

denied using any other drugs. Howard also admitted that she had previously received

mental health and substance abuse treatment at Cobb Recovery Center (“CRC”) and

that she had taken “drug classes” there as a condition of probation arising out of a

1
On appeal, the medical providers do not argue that the trial court erred by
concluding that Howard had not waived the applicable privilege. See generally
Kennestone Hosp. v. Hopson, 273 Ga. 145, 149 (538 SE2d 742) (2000) (“[A] party’s
silence and failure to act in response to a request for privileged matter from a
nonparty health care provider or facility under OCGA § 9-11-34 (c) (2) does not
waive the party’s privilege by implication.”).

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charge of simple battery that was later dropped. Medical documents produced from

other sources showed that Howard tested positive for marijuana on one or more

occasions during her pregnancy.

As a result, the medical providers requested that Howard provide a HIPAA2-

compliant authorization that would allow CRC to produce Howard’s CRC records.

Howard apparently refused, and the medical providers moved to compel production

of the CRC records. Howard responded and objected on the ground that the

documents were not relevant because they pertained only to treatment Howard

received several years before and several years after her pregnancy. She also objected

on the ground that the documents were protected by the mental health privilege. The

trial court conducted a hearing on the motion, following which the court directed

Howard to produce to the court all CRC records for an in camera review, to produce

to the court a privilege log meeting the parameters of Federal Rule of Civil Procedure

2
The Heath Insurance Portability and Accountability Act of 1996. 42 U. S. C.
§ 1320d et seq.

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26 (b) (5) (A),3 and to produce to the medical providers any non-privileged

documents. Howard produced to the court all CRC documents with an index, but

there is no indication that Howard produced a privilege log that complied with FRCP

26. Howard also produced to the medical providers the CRC billing records. The

court subsequently issued an order in which it stated that it had reviewed the

documents to determine

(1) whether the records are privileged (2) whether there are any non-
privileged records in the submission, (3) whether there has been a
waiver of the privilege with regard to any privileged information, and
(4) whether to require the disclosure of any records which are not
privileged or as to which any privilege has been waived.

The trial court then concluded that, with the exception of the billing records already

produced by Howard, the CRC records “are privileged and [ ] the privilege has not

3
FRCP 26 (b) (5) (A) provides,
“When a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to protection as
trial-preparation material, the party must: (i) expressly make the claim;
and (ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed--and do so in a manner that,
without revealing information itself privileged or protected, will enable
other parties to assess the claim.”

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been waived.”4 The court did not address Howard’s failure to produce a privilege log.

This Court granted the medical providers’ request for interlocutory review of the trial

court’s decision with regard to the documents the trial court deemed to be privileged.

1. The medical providers contend the trial court erred by concluding that all of

the CRC records other than the billing records were privileged. The providers contend

they are entitled to those portions of the documents that show (a) dates, times, and

individual providers of services rendered to Howard by CRC; (b) any educational

services provided by CRC to Howard, including substance abuse classes and job

training; (c) Howard’s communications made to or recorded by non-licensed

personnel or personnel not listed in OCGA § 24-5-501 (a); and (d) court-mandated

or probation-related evaluations and drug tests of Howard conducted by CRC.

“Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action[.]” OCGA § 9-11-26 (b)

(1). Georgia law provides several privileges related to mental health, which,

collectively, are referred to as the “mental health privilege.” State v. Herendeen, 279

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The court also stated that it would maintain the privileged CRC documents
under seal, and the documents were delivered under seal to this Court.

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Ga. 323, 325 (613 SE2d 647) (2005). The components of the mental health privilege

include

(5) Communications between psychiatrist and patient;
(6) Communications between licensed psychologist and patient as
provided in Code Section 43-39-16;
(7) Communications between a licensed clinical social worker, clinical
nurse specialist in psychiatric/mental health, licensed marriage and
family therapist, or licensed professional counselor and patient; [and]
(8) Communications between or among any psychiatrist, psychologist,
licensed clinical social worker, clinical nurse specialist in
psychiatric/mental health, licensed marriage and family therapist, and
licensed professional counselor who are rendering psychotherapy or
have rendered psychotherapy to a patient, regarding that patient’s
communications which are otherwise privileged by paragraph (5), (6),
or (7) of this subsection[.]

OCGA § 24-5-501 (a). See also OCGA § 43-39-16 (“The confidential relations and

communications between a licensed psychologist and client are placed upon the same

basis as those provided by law between attorney and client; and nothing in this

chapter shall be construed to require any such privileged communication to be

disclosed.”). Thus, “[a]ny information . . . which had its origins in communications

from the patients to the [mental] health providers is privileged.” Herendeen, 279 Ga.

at 327 (citations omitted).

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 The mental health privilege “remains inviolate even though the patient’s care

and treatment or the nature or extent of the patient’s injuries are put in issue in a civil

proceeding.” Cooksey v. Landry, 295 Ga. 430, 432-433 (2) (761 SE2d 61) (2014)

(citations omitted). And “[t]he psychiatrist-patient privilege is not diminished by the

fact that the patient sought or contemplated treatment jointly with other persons, or

primarily for the benefit of another person who is in treatment by the same

psychiatrist.” Mrozinski v. Pogue, 205 Ga. App. 731, 733 (1) (423 SE2d 405) (1992)

(addressing family therapy); Sims v. State, 251 Ga. 877, 880 (5) (311 SE2d 161)

(1984) (statements made by husband during joint psychiatric counseling with wife

were privileged); compare Karpowicz v. Hyles, 247 Ga. App. 292, 294 (1) (543 SE2d

51) (2000) (mother’s statement to licensed clinical psychologist who treated her

daughter that she was afraid that her daughter was unable to distinguish fact from

reality was not privileged because only daughter, not mother, sought mental health

treatment). Also, drug and alcohol treatment records are protected by federal law

under certain circumstances. See Sletto v. Hosp. Auth., 239 Ga. App. 203, 208 (521

SE2d 199) (1999), Eldridge, J., concurring specially.

But all psychiatric records “are not absolutely privileged.” Plunkett, 217 Ga.

App. at 21. And nonprivileged portions of such records are subject to discovery.

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Aetna Cas. & Sur. Co. v. Ridgeview Institute, 194 Ga. App. 805 (392 SE2d 286)

(1990). For example, “[t]he privilege does not extend . . . to any communications

made [by the patient] to nurses or attendants, unless [the nurses or attendants] were

acting as agents of the attending psychiatrist[.]” Plunkett, 217 Ga. App. at 21 (citation

omitted). Similarly, “[t]o the extent that the records in question disclose information

or communications made between [a mental health professional] and persons other

than [another mental health professional or his or her] agent and such

communications are relevant to [the] defense, they would be discoverable under

Georgia law.” Aetna Cas. & Sur. Co., 194 Ga. App. at 806 (1) (citation omitted). And

where “no mental health treatment is given or contemplated” — for instance, when

a court appoints a mental health provider to evaluate a person’s mental state as

opposed to providing treatment — the mental health privilege is inapplicable.

Herendeen, 279 Ga. at 326. Compare In re I. M. G., 276 Ga. App. 598, 603 (1) (624

SE2d 236) (2005) (even if a patient received treatment involuntarily, the fact that she

received psychotherapist-patient treatment meant the mental health privilege applies).

Also, drug tests required by an employer are not protected. Foster v. Swinney, 263

Ga. App. 510, 512 (a) (588 SE2d 307) (2003). Finally, “the fact of employment of or

treatment by a mental health provider and the dates thereof do not fall within the

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mental health privilege and may be disclosed.” Herendeen, 279 Ga. at 327 (citations

omitted); Kennestone Hosp., 273 Ga. at 148; Mincey v. Ga. Dept. of Community

Affairs, 308 Ga. App. 740, 746 (1) (708 SE2d 644) (2011).

Our review of the records at issue shows, among other things, dates of service;

the names of several persons whose professional status is unknown; numerous

documents where, without additional information about the content of the document,

we are unable to tell whether it had its origin in a communication between Howard

and a mental health provider; documents that include undefined acronyms making the

nature of the services rendered indecipherable; reports of a medical doctor concerning

a medical diagnosis; various notices of the privacy practices of the Cobb/Douglas

County Community Services Boards and consent agreements signed by Howard

regarding her right to confidentiality and any exceptions thereto; statements of

payment for services; indications that Howard has participated in group counseling

sessions but without specifics regarding the group nature of the sessions; medical risk

assessment documents; communications from Howard’s mother to CRC personnel;

a letter “To Whom It May Concern” regarding the program and treatment Howard

was receiving; documents reporting conversations with other non-professionals

present; and indications of the results of random drug screenings.

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 Many of these documents, however, are obviously not relevant to the present

proceedings. Nevertheless, because some of the documents may be both relevant and

non-privileged, the trial court erred by concluding that all of the documents other than

the produced billing documents are privileged. Plunkett, 217 Ga. App. at 22. Any

relevant and non-privileged documents should be produced even if redactions are

necessary. This Court is unable to complete the review of the documents without

additional information not available to this Court, such as, among other things, the

professional status of certain individuals, whether the information in some of the

documents had its origin in a communication between Howard and a mental health

provider, and whether certain documents reflect treatment other than mental health

treatment. Accordingly, this case is remanded to the trial court for an in camera

review in conformance with this opinion, “i.e., to separate privileged versus non-

privileged information and provide a redacted copy.” Id. (reversing trial court’s order

determining that entire psychiatrist’s file was privileged and remanding for additional

in camera review); see also Herendeen, 279 Ga. at 328 (remanding case for in camera

review to determine what documents were privileged).

2. The medical providers contend the trial court also erred by barring any

discovery of the CRC records without requiring Howard to produce a privilege log

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in compliance with Rule 26 (b) (5) (A) of the Federal Rules of Civil procedure as it

had previously ordered. The trial court had ordered Howard to prepare such a log in

response to the medical providers’ motion to compel production of the CRC records,

but it did not specify a penalty for noncompliance. In its order following the in

camera review of the CRC documents, the trial court did not address Howard’s failure

to produce a privilege log. Because the trial court has not addressed Howard’s failure

to produce a privilege log, there is nothing for this Court to review; we are not able

to assess whether the trial court breached its discretion. Upon remand, the trial court

should address Howard’s failure to comply with the court’s own ruling to prepare

such a log.

Judgment reversed and case remanded with direction. Andrews, P. J., and

Miller, J., concur.

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