State Ex Rel. Udall v. Superior Court

L. RAY HAIRE, Judge (Retired),

concurs.

NOTE: The Honorable L. RAY HAIRE, Judge (Retired) was authorized to participate in this appeal by the Chief Justice of the Arizona Supreme Court pursuant to Article 6, section 20 of the Arizona Constitution and A.R.S. section 38-813 (1985).

*467FIDEL, Judge, dissenting.

To cusMon the impact of its holding, the majority declines to “address what effect [its interpretation of] A.R.S. section 13-3620(F) would have on requests for medical records that are remote in time or circumstances from the alleged abuse.” But to decline to address, in this instance, is to decline to face what is inherent and inescapable. The majority holds that “subsection (F) is intended to abrogate [nothing] less than the entire scope of the physician-patient privilege in cases involving the abuse of a child.” It also describes subsection (F) as “a nullification of the physician-patient privilege in all cases involving the abuse of a child.” This holding has no bounds.

The majority observes that, in the instant case, the requested information “involves the alleged abuser, relates to medical services provided on the date of the incident, and is directly related to the alleged abuse.” But the statute, as the majority reads it, cannot logically be so confined. The statute contains no temporal limitations; nor does it require circumstantial proximity. To abrogate or nullify the “entire scope of the physician-patient privilege” is to do so for treatment near and far. When child abuse investigators seek to probe a suspect’s long past psychoanalysis, marital counseling, or some other form of treatment that attracts their interest, the records—whatever protection the rules of evidence or the constitutional right of privacy might provide—are wholly unprotected by the doctor-patient privilege.

Nor is the majority’s holding confinable to cases of child abuse. Whatever doctor-patient privilege the statute abrogates, it abrogates for proceedings “in which a child’s neglect, dependency, abuse or abandonment is an issue.” A.R.S. § 13-3620(F).

Nor can the statutory abrogation, as the majority reads it, be confined to the privilege of the accused. The majority takes literally, and accepts no contextual limitations for, the statutory declaration that “the physician-patient privilege ... shall not pertain in any ... procéeding in which a child’s neglect, dependency, abuse or abandonment is an issue.” Because the majority finds no limiting language within subsection (F) that confines abrogation of the privilege to treating relationships in which the patient is the child, the majority extends the abrogation to a second sphere of relationships—those in which the patient is the accused. But there is likewise no limiting language that confines the abrogation to the sphere of those accused. By the logic of the majority, when issues of abuse or neglect or abandonment arise, whether in criminal or child-custody or paternity or dependency or severance proceedings, not only parties accused of abuse or neglect, but other parties and witnesses, forfeit the confidentiality of medical records sought as probative of bias or motivation or countervailing fitness to raise the child.

To be sure, the doctor-patient privilege is not the only line of protection against discovery or admission of medical records or patient disclosures. Medical evidence may not stand the test of relevance. Courts may find that medical inquiries are not “reasonably calculated to lead to the discovery of admissible evidence.” See Ariz.R.Civ.P. 26(b)(1), 16 A.R.S. Courts may find that medical discovery would violate the patient’s right of privacy under the state or federal constitution. Cf. Rasmussen v. Fleming, 154 Ariz. 207, 215, 741 P.2d 674, 682 (1987) (observing that patients have certain privacy expectations within the doctor-patient relationship that are protected under Arizona Constitution article 2, section 8). But these protections are far less certain than the doctor-patient privilege. And, significantly, they are only likely to be enforced when medical inquiries are contested in an adjudicative forum.

This last point puts in focus another facet of the statute. Subsection (F) is not confined to proceedings in the courts or even to proceedings before administrative tribunals. Whatever doctor-patient privilege the statute abrogates, it expressly abrogates not only for judicial and administrative proceedings, but also for investigations by the police and by the Child Protective Services division (“C.P.S.”) of the Department of Economic Security. A.R.S. § 13-3620(F). The prosecutor in this case requested the medical records of the accused from her physician and hospital by letter, attaching a copy of the statute and advising that, pursuant to subsec*468tion (F), the doctor-patient privilege did not pertain. Police and C.P.S. investigators may send similar letters in the course of preadjudicative investigations. Some inquiries will be narrowly drawn; others may be fishing expeditions. Whichever they are; there is no assurance they'will come to the attention of the patients or be subjected to judicial review.

We cannot escape these sweeping implications of interpreting subsection (F) to nullify the entire scope of the doctor-patient privilege. The second sentence of subsection (F), standing alone, can be read to support the majority’s view. But there are good reasons to believe that the legislature never contemplated, much less intended, that its words would stretch so far.

Section 13-3620 is a multi-subject statute that covers substantial ground. It varyingly requires or authorizes reporting by persons, health care providers among them, who have reason to believe that a child has been neglected or abused; it obliges, with certain exceptions, the release of medical records of an allegedly neglected or abused child; it immunizes those who report their reasonable suspicions and release supporting information; and it abrogates a variety of privileges that would inhibit the disclosures otherwise required. The statute does not isolate the provisions concerning medical service providers; it collectively addresses the obligations and privileges of persons from many walks of life. Yet, in three subsections the statute focuses specifically on medical treatment and medical records. See A.R.S. § 13-3620(A), (C), and (H). In none of these subsections does the legislature address treatment or records of suspects or those accused; in each, the legislature addresses only treatment and records of the child.

Subsection (A), insofar as it addresses health care providers, establishes a reporting obligation for “[a]ny physician, hospital intern or resident, surgeon, dentist, osteopath, chiropractor, podiatrist, county medical examiner, nurse, [or] psychologist ... having responsibility for the care or treatment of children whose observation or - examination of any minor discloses reasonable grounds to believe that a minor is or has been the victim of injury, sexual abuse, [etc.].” A.R.S. § 13-3620(A) (emphasis added).

Subsection (C), which requires custodians to release medical records to police or C.P.S. investigators, is similarly circumscribed:

C. A person having custody or control of medical records of a minor for whom a report is required or authorized under this section shall make such records, or a copy of such records, available to a peace officer or child protective services worker investigating the minor’s neglect or abuse on written request for the records signed by the peace officer or child protective services worker.

(Emphasis added.)

The same narrow focus is maintained in subsection (H), which permits a limited excision of information from psychiatric records of the child:

H. If psychiatric records are requested pursuant to subsection C of this section, [which pertains to-the records of the child,] the custodian of the records shall notify the attending psychiatrist, who may excise from the records, before they are made available:
I. Personal information about individuals other than the patient.
2. Information regarding specific diagnosis or treatment of a psychiatric condition, if the attending psychiatrist certifies in writing that release of the information would be detrimental to the patient’s health or treatment.

(Emphasis added.) See also A.R.S. § 13-3620(1) (permitting police or C.P.S. investigators to petition a court to order disclosure of portions of psychiatric records excised under subsection (H)). The statute contains no comparable provisions addressing the release or partial excision of psychiatric records of a suspect or an accused.

The presence of these specific provisions and the absence of comparable provisions discussing examination, treatment, or records of a suspect or an accused suggests that the legislature never contemplated the latter subject when it enacted AR.S. § 13-3620. Indeed, subsection (C) would be superfluous if the legislature had intended by subsection *469(F) to abrogate the privileged status of medical records in any investigation of child abuse or neglect. Rather, as the trial court sensibly concluded, subsections (A), (C), and (H) give context to the abrogation of the doctor-patient privilege in subsection (F). Because the only doctor-patient relationship that the legislature addressed or contemplated was that of the doctor and the child, the abrogation of the physician-patient privilege was limited to the privilege of the child.5

Is mine the only conceivable reading of the statute? Surely not. There are currents and cross-currents in the statute, and the majority rides some of them to its conclusion.6 But in declaring what the legislature “intended,” the majority indulges in projection. “The quest” in interpreting a statute, according to Llewellyn, is not so much “for the sense sought originally to be put into it, but rather for the sense which can be quarried out of it in the light of the new situation” before the court. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L.Rev. 395, 400 (1950). In the situation before us, it is safer, in my view, to examine what the legislature contemplated than to imagine what it intended. And there is no statutory evidence that the legislature contemplated the wholesale nullification of privilege that the majority reads into 13-3620(F).

The legislature may or may not wish, if it examines the subject, to abrogate to some degree the doctor-patient privilege of those suspected of child abuse or child neglect. Such an examination would permit debate over temporal and circumstantial limits, privacy concerns, notice, the availability of judicial review, opportunities for excision of “personal information about individuals other than the patient,” see A.R.S. § 13-3620(H)(1), and a host of other pertinent considerations. But the legislature has not examined the subject, and, in my view, did not enact the sweeping abrogation that the majority achieves today.

. Subsections (A), (C), and (H) also serve to distinguish this case from State v. Salzman, 139 Ariz. 521, 679 P.2d 544 (App.1984). In that case, the majority correctly notes, this court declined to interpret narrowly the abrogation by section 13-3620(F) of the marital privilege. But there is no discussion of marital relations or communications elsewhere in the statute that would provide a narrowing context for the marital privilege. By contrast, subsections (A), (C) and (H), which focus on medical examinations and records of the child, provide a narrowing context for the doctor-patient privilege and suggest the extent to which the legislature considered its abrogation.

. Section 8-546.04(B), cited by the majority, contains privilege-abrogation language similar to, though less extensive than, that of section 13-3620(F). Section 8-546.04(B) is contained within Title 8, article 3, of the Arizona Revised Statutes, which establishes the powers and responsibilities of protective services workers. See A.R.S. §§ 8-546 et seq. In 1976 the immunity and privilege-abrogation sections of sections 8-546.04 and 13-842.01, the predecessor to 13-3620, were amended into conformity, with the broader abrogating language of the former incorporated into the latter. Laws 1976, Ch. 171, §§ 2, 3. Then in 1986, section 13-3620 was substantially expanded. Within subsection 13-3620(F) the abrogation of privilege, which had previously applied only in judicial proceedings, was extended to administrative proceedings and to police and C.P.S. investigations; and subsections (B), discussed in the majority opinion, and (C), (H), and (I), discussed in this opinion, were added to the statute. No comparable additions were made to section 8-546.04.

The majority reasons that section 8-546.04(B) is not subject to the contextual limitations that the juvenile attributes to section 13-3620. However, section 8-546.04(B) was never the subject of judicial interpretation before the 1976 conforming amendment to the predecessor to section 13-3620, and it remains uninterpreted in the case law since that time. Whatever the statutes mean, they are interrelated and deserve a harmonizing construction. And, in my view, the legislature’s exclusive focus on medical records of the child in the 1986 addition of subsections (C), (H), and (I) strongly indicates the limited extent to which the legislature contemplated, under either statute, an abrogation of the doctor-patient privilege.