Andrich v. Banner University

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DEVIN ANDRICH, Plaintiff/Appellant,

v.

BANNER UNIVERSITY MEDICAL CENTER, et al., Defendants/Appellees.

No. 1 CA-CV 22-0013
FILED 11-8-2022

Appeal from the Superior Court in Maricopa County
No. CV 2020-002063
The Honorable Joseph P. Mikitish, Judge

AFFIRMED

APPEARANCES

Devin Andrich, Phoenix
Plaintiff/Appellant

Slattery Petersen PLLC, Tucson
By Gabriel O’Quin, GinaMarie Slattery
Counsel for Defendants/Appellees, Banner, Allred

Holden & Armer PC, Phoenix
By Scott A. Holden, Nathan S. Ryan
Counsel for Defendant/Appellee, Ellis
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L, Judge:

¶1 Devin Andrich appeals from a grant of summary judgment in
favor of the medical-provider defendants, Banner University Medical
Center, Dr. Carl Allred (collectively, “Banner”), and Dr. Scott Ellis.1 He
disputes the superior court’s finding that his digital medical records are not
chattel and therefore not subject to conversion. See Miller v. Hehlen, 209 Ariz.
462, 472, ¶ 34 (App. 2005) (“Conversion is an intentional exercise of
dominion or control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the
other the full value of the chattel.”). He also argues that the superior court
erred in (1) denying a motion to strike medical records and (2) awarding
$1,000 in sanctions for Andrich’s failure to concede unmeritorious claims.
Because Andrich failed to allege the factors and facts necessary to maintain
a cause of action for conversion, and because the court did not abuse its
discretion in denying Andrich’s motion to strike or awarding sanctions, we
affirm.

BACKGROUND

¶2 Andrich is a disbarred attorney who has been convicted of
defrauding his clients. While incarcerated and awaiting trial, he suffered an
injury to his right shoulder. As part of his medical care while in the Arizona
Department of Correction’s (ADOC) custody, Corizon Health managed his
medical care. Corizon referred Andrich to a Banner facility for a diagnostic
MRI, which revealed torn muscles and an accompanying cyst in Andrich’s
shoulder. Banner faxed the MRI report to Corizon within a week but
retained the actual MRI results. While in ADOC custody, Andrich had one

1 Andrich also named Dr. Allred and Dr. Ellis’ wives. Dr. Ellis is
unmarried, but Dr. Allred’s wife, Kristin Allred, remains a party on appeal.
Because Ms. Allred has no liability independent of her husband, we refer
only to Dr. Allred. See Selby v. Savard, 134 Ariz. 222, 229 (1982) (“[T]he
community is liable for the intentional torts of either spouse if the tortious
act was committed with the intent to benefit the community.”)

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appointment with Dr. Ellis, an orthopedic surgeon at a non-Banner practice.
Dr. Ellis examined Andrich and provided Corizon with his consultation
report recommending an ultrasound. The ultrasound was conducted later
that month at the Arizona State Prison’s medical facility. Dr. Ellis did not
examine or treat Andrich again. Corizon arranged further treatment
through Banner with Dr. Allred, another orthopedic surgeon.

¶3 Upon his release from custody, Andrich was informed of the
process through ADOC for accessing his medical records, including the
MRI and ultrasound reports.

¶4 As part of his then-ongoing medical malpractice federal case,
Andrich sent Health Insurance Portability and Accountability Act (HIPAA)
releases to Defendants.2 The release “instruct[ed]” the recipients to
“produce any and all . . . copies of all medical records . . . and any medical
information whatsoever arising from my care and treatment at any time.”
More specifically, Andrich requested that “all recipients” produce:

1) the radiology films and/or electronic radiology films
pertaining to Plaintiff’s MRI performed on or about January
8, 2016; 2) all electronic/digital copies of the MRI . . . ; and 5)
all correspondence exchanged between and/or among
[Defendants and other providers] concerning Devin Andrich.

In the release, Andrich also “expressly warned” the recipients that he
would pursue a contempt order if they “with[held] or otherwise delay[ed]
production of any e-mails or other correspondence.” Banner and Dr. Ellis
received Andrich’s request. Dr. Allred, who no longer worked for Banner,
did not.

¶5 When Andrich did not receive the records by his stated one-
month deadline, he filed suit against the healthcare defendants.3 Andrich
brought claims for conversion and gross negligence, alleging each medical
defendant unlawfully withheld his “comprehensive medical records” by

2 Since his release from custody, Andrich has filed at least 13 lawsuits
relating to his disbarment, conviction, and at issue here, his medical
treatment and records. See, e.g., Andrich v. State Bar of Ariz., CV 19-00751,
2019 WL 11339764, at *2 n.1 (D. Ariz. May 29, 2019) (collecting federal civil
cases); State v. Andrich, 1 CA-CR 18-0600, 2019 WL 150497 (Ariz. App. Jan.
10, 2019) (mem. decision).
3 HIPAA requires covered entities to “act on” compliant requests within
30 days of receipt. See 45 C.F.R. § 164.524(b)(2)(i).

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failing to respond to his HIPAA release promptly. Andrich also alleged
medical malpractice and related gross negligence against Banner and
Dr. Allred, as well as gross negligence relating to conversion against all
Defendants.4 Andrich alleged, without the records, he could not (1) fix his
shoulder, which in turn barred him from gainful employment, or (2)
provide a medical expert affidavit to support his medical malpractice claim
in this case or his federal cause of action. See A.R.S. § 12-2603(B). By the time
service had been perfected in the instant case, Andrich’s federal suit had
been dismissed.

¶6 Within weeks, in June 2020, Banner provided Andrich with
his medical records. Dr. Ellis produced copies of the medical records in his
possession and control later that summer.

¶7 In December 2020, Dr. Ellis filed a motion for summary
judgment. Banner filed a motion for joinder in Dr. Ellis’ motion for
summary judgment. Andrich then moved to strike a portion of the
statement of facts accompanying Banner’s motion for joinder, alleging that
it unlawfully “published” his medical records. The superior court granted
summary judgment in Dr. Ellis’ favor in June 2021, finding the medical
records were not chattel subject to conversion, and in any case, Andrich had
provided no evidence of intent to deprive. He also failed to demonstrate
that he could not obtain the records from ADOC.

¶8 At Andrich’s request and upon a finding of good cause, the
superior court ordered that Banner’s motion for joinder be treated as a
separate motion for summary judgment but denied Andrich’s motion to
strike. In late September, faced with the same legal arguments and similarly
sparse evidence, the superior court granted summary judgment in favor of
Banner. Noting Andrich “should have known” the Banner facts “would fare
no better under the same law that applied to Dr. Ellis,” the superior court
granted Banner’s motion for sanctions and entered a monetary award.
Andrich timely appealed.

DISCUSSION

¶9 Andrich raises three issues on appeal. First, Andrich disputes
the superior court’s finding that medical records are not chattel, and

4 Andrich has abandoned these claims by failing to appeal their dismissal.
See Belen Loan Invs., L.L.C. v. Bradley, 231 Ariz. 448, 457, ¶ 22 (App. 2012)
(“[I]ssues not clearly raised and argued in a party’s appellate brief are
waived.”).

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therefore not subject to conversion. Next, he argues that the superior court
erred in denying his motion to strike exhibits attached to Banner’s
statement of facts containing medical records and deposition testimony,
and lastly, by ordering him to pay $1,000 to Banner as sanctions under Rule
11 of the Arizona Rules of Civil Procedure (Rule). We address each
argument in turn.

I. Motion for Summary Judgment

¶10 In determining whether a party is entitled to summary
judgment, we review questions of law de novo and view the facts in a light
most favorable to the party against whom summary judgment was granted.
In re Estate of Podgorski, 249 Ariz. 482, 484, ¶ 8 (App. 2020). The court should
grant summary judgment only if it finds no genuine issues of material fact
and one party is entitled to judgment as a matter of law. Grain Dealers Mut.
Ins. Co. v. James, 118 Ariz. 116, 118 (1978).

A. Medical Records Are Not Chattel Subject to a Cause of
Action for Conversion

¶11 Andrich argues that his medical records are valuable and
tangible personal property subject to a claim of conversion because, unlike
a customer list, they cannot be recreated “[i]f stolen.” See Miller, 209 Ariz. at
472, ¶ 35. In both grants of summary judgment, the court found that
Andrich’s medical records, including the MRI, are not chattel and cannot
be the subject of conversion. “Conversion is an intentional exercise of
dominion or control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the
other the full value of the chattel.” Id. at ¶¶ 34–35 (“customer list” of names
copied from database was not chattel subject to conversion); see also
Restatement (Second) of Torts § 222(A) (1965). “An action for conversion
ordinarily lies only for personal property that is tangible, or to intangible
property that is merged in, or identified with, some document”
representing a right of possession. See Miller, 209 Ariz. at 472, ¶ 35
(quotation omitted); see also Restatement (Second) of Torts § 242 cmt. a
(1965). Medical records have no value independent of the information tied
to the patient with the prospect of obtaining medical treatment in the
future.

¶12 The court concluded “that the medical records at issue in this
matter do not constitute chattel or personal property that have some
inherent value, like a stock certificate or insurance policy.” See Miller, 209
Ariz. at 472, ¶ 35. We agree. Andrich’s medical records had no independent

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value; they could not be traded or sold for any value. The only value they
had was to Andrich, and they had no value to the medical defendants
whatsoever. Accordingly, medical records cannot be considered chattel.
Since the deprivation of property or chattel serves as the basis for
conversion, Andrich failed to properly allege the elements of conversion,
and the granting of summary judgment was appropriate.

¶13 Additionally, it is undisputed that Dr. Ellis and Banner
produced Andrich’s medical records, albeit not as quickly nor completely
as he would have liked, and that Dr. Allred had no records independent of
Banner to produce. Mere inconvenience or delay does not rise to
conversion; serious interference requires hostile control, or “a dominion or
control over the goods which is in fact inconsistent with the plaintiff’s
rights.” See Sterling Boat Co., Inc. v. Ariz. Marine, Inc., 134 Ariz. 55, 58 (App.
1982); Focal Point, Inc. v. U-Haul Co. of Ariz., Inc., 155 Ariz. 318, 319–20 (App.
1986) (finding no conversion when the plaintiff could have regained control
by traveling a short distance to prove right of possession to a truck).5

B. Conversion Requires Intent to Deprive

¶14 Even if we were to assume that medical records could be
considered chattel, Andrich still failed to plead properly a cause of action
for conversion. In response to Banner’s motion for joinder, Andrich pointed
to Banner’s unwillingness to produce certain documents as evidence of
hostile intent, arguing that until Banner and Dr. Allred produced the
“electronic log records” relating to his records request, no one could know
“the extent of [their] hostile intent.” Andrich also provided the court
selective quotes from internal emails as evidence that Banner
“intentional[ly] [and] deliberate[ly]” withheld records. Read as a whole, the
emails show confusion over “what to make” of Andrich’s letter, including
whether to process it as a patient or attorney request. Other than Andrich’s
speculation, he produced no evidence that the medical defendants intended
to withhold his records, much less that they did so with hostile motivation.

¶15 The superior court found no evidence produced that
demonstrated the medical defendants’ intent to deprive or seriously
interfere with Andrich’s access to the records. Even if we assume medical
records were chattel, Andrich fails to provide sufficient evidence of the

5 This conclusion disposes of the arguments raised by Andrich
regarding summary judgment granted in favor of Dr. Ellis.

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medical defendants’ intention to deprive him of such. Therefore, again he
fails to provide facts sufficient to maintain a cause of action for conversion.

II. Motion to Strike Exhibits

¶16 Next, Andrich argues the superior court erred in denying his
motion to strike several exhibits appended to Banner’s motion for joinder
because they were confidential medical records under A.R.S. § 12-2292. He
contends the court should have granted his motion and ordered Banner to
file the records under seal. However, the court concluded the contested
exhibits—a mix of medical records, deposition testimony, and discovery
disclosures—“contained no more information than necessary to address the
claims raised by the Plaintiff.” We agree.

¶17 We review the superior court’s order denying Andrich’s
motion to strike for an abuse of discretion. See Birth Hope Adoption Agency,
Inc. v. Doe, 190 Ariz. 285, 287 (App. 1997). Motions to strike are authorized
in limited circumstances outside of trial or an evidentiary hearing. Ariz. R.
Civ. P. 7.1(f). One such circumstance is when the motion “seeks to strike
any part of a filing or submission on the ground that it is prohibited, or not
authorized, by a specific statute.” Ariz. R. Civ. P. 7.1(f)(1). “Unless
otherwise provided by law, all medical records . . . are privileged and
confidential.” A.R.S. § 12-2292. A patient waives this protection by placing
a “particular medical condition” at issue, either by “mak[ing] an assertion
about or present[ing] evidence about [it].” Heaphy v. Metcalf, 249 Ariz. 210,
212–13, ¶ 6 (App. 2020).

¶18 Andrich argues A.R.S. § 12-2292 and Rule 5.4(c) “required
[Banner and Dr. Allred] not to publish” the medical records. Medical
records contain information about “a patient’s physical or mental health or
condition.” A.R.S. § 12-2291(6). Implied waiver of the physician-patient
privilege occurs in two circumstances: 1) under the waiver of privilege
statute, the privilege is waived if the privilege holder offers himself as a
witness and voluntarily testifies about privileged communications, and 2)
when the holder places a particular medical condition at issue through a
claim or affirmative defense. A.R.S. §§ 12-2235, -2236, -2292; see also Heaphy,
249 Ariz. at 212–13, ¶¶ 3, 6. Here, in filing a complaint alleging medical
malpractice, he placed the subject of those records, his shoulder injury,
directly at issue, thereby waiving any claim of privilege. See Throop v. F.E.
Young & Co., 94 Ariz. 146, 156–58 (1963) (finding “highly material” claim of
“sudden” heart attack waived privilege regarding records of ongoing
treatment for heart problems).

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¶19 Andrich goes on to contend he is not claiming the medical
records were privileged but that Banner “kn[e]w to file the medical records
under seal.” Once the privilege has been waived, there is no requirement to
protect that information from disclosure. Bain v. Superior Court, 148 Ariz.
331, 333 (1986). Had Andrich wanted that information taken out of the
public record, he should have moved to seal the records instead of moving
to strike them from the record. Cf. Ctr. for Auto Safety v. Goodyear Tire &
Rubber Co., 247 Ariz. 567, 572–74, ¶¶ 19–23, 27–29 (App. 2019) (protecting
trade secrets by enforcing the order to file under seal). A party cannot file a
record under seal unless authorized by statute, rule, or prior court order.
See Ariz. R. Civ. P. 5.4(c)(2) (requiring findings on the record that warrant
“overriding . . . the right of public access” absent statute, rule, or prior court
order).

¶20 Here, Andrich did not request a court order requiring his
records to be filed under seal, nor did he move to seal the exhibits after they
were filed. A motion to strike was the wrong procedural vehicle for
removing public access to the records. Therefore, the superior court did not
abuse its discretion in denying Andrich’s motion to strike.

III. The Court Properly Imposed Rule 11 Sanctions

¶21 Last, Andrich argues the superior court erred in awarding
monetary sanctions to the medical defendants. We review all aspects of an
order imposing Rule 11 sanctions for abuse of discretion.6 James, Cooke &
Hobson, Inc. v. Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319 (App.
1993); see also Ariz. R. Civ. P. 11. A party violates Rule 11 by filing a pleading
with a claim or defense that he should have known to be “insubstantial,
groundless, frivolous, or otherwise unjustified.” Boone v. Superior Court, 145
Ariz. 235, 241 (1985) (en banc). Andrich alleges the court imposed sanctions
“for filing the response” to Banner’s separate motion for summary
judgment. Not so. The superior court found that sanctions were appropriate
because Andrich “should have known that the facts applicable to Banner
would fare no better under the same law” than when applied to the grant
of summary judgment in Dr. Ellis’ favor.

6 Andrich argues for “a de novo review of the . . . separate motion for
summary judgment” to “confirm[] that the trial court erred in sanctioning
Appellant.” (Emphasis added.) But Andrich’s analysis is spent arguing the
sanctions were unwarranted because of the importance of preserving issues
for appeal. He seeks to vacate the order awarding sanctions; therefore, the
court’s discretion is at issue.

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¶22 There are consequences for pursuing frivolous claims, and the
imposition of Rule 11 sanctions was appropriate. The superior court did not
abuse its discretion in ordering Andrich to pay Rule 11 sanctions to offset
Banner’s costs and fees associated with responding to his frivolous
arguments.

CONCLUSION

¶23 For the reasons above, we affirm. Andrich failed to provide
evidence sufficient to maintain a cause of action for conversion, even if we
assumed that his medical records are personal property subject to
conversion. The superior court did not abuse its discretion in denying
Andrich’s motion to strike or awarding monetary Rule 11 sanctions,
payable to Banner. As the prevailing party, we order Andrich to pay the
Appellees’ taxable costs on appeal, pending their compliance with ARCAP
21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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