concurring.
I concur in the result reached by the majority. However, I write separately to state the analysis by which I reach that same conclusion. At issue is whether the circuit court erred in denying a motion to quash subpoenas directing production of a nonparty’s medical records. The general rule is that medical records are confidential and not subject to discovery. See Barr v. State, 386 Ark. 220, 228, 984 S.W.2d 792, 795-96 (1999). Medical records are privileged and in the context of this case are discoverable only if the conditions of Arkansas Rule of Civil Procedure 35(c)(1) and Arkansas Rule of Evidence 503 can be met. The conditions have not been met in this case.
Rule 35(c)(1) provides as follows:
[a] party who relies upon his or her physical, mental, or emotional condition as an element of his or her claim or defense shall, within 30 days after the request of any other party, execute an authorization to allow such other party to obtain copies of his or her medical records.
Arkansas Rule of Evidence 503, which governs the physician and psychotherapist-patient privilege, provides as follows:
There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense.
Ark. R. Evid. 503(d)(3)(A).
McKenzie is not a party and, therefore, has not relied on any medical condition as anL element of a claim or a defense. His medical records are not subject to discovery under Rule 35(c)(1) or Rule 503, and they were not subject to the subpoenas issued by James Pierce’s attorney in this case.
I agree that McKenzie’s appeal may be considered as a petition for extraordinary relief under the original jurisdiction of this court. McKenzie is not a party to the Pierce custody action and will not be a party to that action when the final, appeal-able order on custody is entered. He will have no appealable interest in the final order on custody. A discovery dispute between parties is not at issue. This case presents no danger of piecemeal appeals. In Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000), a medical-malpractice action, matters relating to plaintiffs subsequent medical treatment on an unrelated condition were found privileged and subject to a petition for a writ of certiorari. This court stated that it was “persuaded that an appeal of an adverse decision would not be an adequate remedy under the circumstances.” Kraemer, 342 Ark. at 481, 492, 29 S.W.3d at 690-91. A petition for writ of certiorari may be heard in this case.
I also note that the issue presented is not moot. While McKenzie’s medical records upon production were not reviewed, and have since been returned to McKenzie, the threat of disclosure remains. As the majority notes, James yet seeks disclosure of McKenzie’s medical records by way of subpoena. “[A] case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy.” Bank of America, N.A. v. Brown, 2011 Ark. 446, at 3, 2011 WL 5110201 (citing Kinchen v. Wilkins, 367 Ark. 71, 74, 238 S.W.3d 94, 97 (2006)). An existing legal controversy remains.
II ¡.While McKenzie’s mental health may be highly relevant to the best-interest-of-the-child analysis in the underlying custody dispute, that analysis must be made based on admissible evidence. To hold that the records are subject to subpoena under these facts means that, by marrying a person with children, the new spouse thereby waives the confidentiality of his or her medical records in any proceeding regarding custody of the spouse’s children. I concur in the majority’s conclusion that the subpoenas were improper. I also agree that the motion under Arkansas Rule of Civil Procedure 11 may be considered anew upon remand.
GOODSON, J„ joins.