As Corrected July 21, 2015.
Original petition for a writ of mandamus directing the district court to sustain the privileges asserted by a defendant doctor in a medical malpractice case as to his personal counseling and treatment records.
Mandelbaum, Ellerton & McBride and Sarah Marie Ellerton, Kim Irene Mandelbaum, and Robert C. McBride, Las Vegas, for Petitioner.
The Law Office of Daniel S. Simon and Daniel S. Simon, Las Vegas, for Real Parties in Interest.
Pickering, J. We concur: Hardesty, C.J., Parraguirre, J., Cherry, J., Gibbons, J. DOUGLAS, J., concurring in part and dissenting in part. SAITTA, J., dissenting.
BEFORE THE COURT EN BANC.
This is a medical malpractice case in which the doctor defendant, petitioner Ryan Mitchell, seeks an extraordinary writ directing the district court to protect as privileged counseling and medical records relating to his substance abuse. We conditionally grant the writ. Mitchell's family and marital therapy records are privileged, and his doctor-patient records, though subject to the patient-litigant exception in NRS 49.245(3), should have been reviewed in camera by the district court and
appropriate limitations placed on their use before discovery of all or any part of them was allowed.
Alec Bunting experienced heart problems following a tonsillectomy performed by Dr. Mitchell. Bunting's guardian ad litem, Stella Ravella, sued Mitchell and Mitchell's employer for medical malpractice and negligent hiring and supervision, respectively. Ravella's complaint alleges 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.
In 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 denies 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 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.
Ravella posits 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.
The law reserves extraordinary writ relief for situations " where there is not a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170 (mandamus); NRS 34.330 (prohibition). Because most discovery rulings can be adequately reviewed on appeal from the eventual final judgment, extraordinary writs " [g]enerally . . . are not available to review discovery orders." Clark Cnty. Liquor & Gaming Licensing Bd. v. Clark, 102 Nev. 654, 659, 730 P.2d 443, 447 (1986). But when a discovery order directs disclosure of privileged information, a later appeal may not be an effective remedy. Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 350-51, 891 P.2d 1180, 1183-84 (1995) (" If improper discovery were allowed, the assertedly privileged information would irretrievably lose its confidential and privileged quality and petitioners would have no effective remedy, even by a later appeal." ); see Hetter v. Eighth Judicial Dist Court, 110 Nev. 513, 515, 874 P.2d 762, 763 (1994). Thus, we have occasionally granted extraordinary writ relief from orders allowing pretrial discovery of privileged information, especially when the petition presents an unsettled and important issue of statutory privilege law. Diaz v. Eighth Judicial Dist Court, 116 Nev. 88, 93, 993 P.2d 50, 54 (2000); Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993).
Our cases do not address whether and, if so, how the at-issue waiver doctrine and/or the patient-litigant exception to the doctor-patient and family therapist-client privileges apply when it is the defendant who claims the privilege and the plaintiff who has put the defendant's physical or mental condition
in issue. And, without writ relief, compelled disclosure of Mitchell's assertedly privileged communications will occur before a final appealable judgment is reached. Together, these considerations persuade us that our intervention by way of extraordinary writ is appropriate in this matter.
NRS 49.225 and NRS 49.247 protect as privileged confidential communications between a patient and his 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 question we face 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. This is a legal question that we decide de novo, without deference to the district court. See Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 130 ...