J-S73002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICKY TEJADA,                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

CERTIFIED NURSE PRACTITIONER
GONZALEZ OF SCI SMITHFIELD,

                            Appellee                  No. 622 MDA 2014


                      Appeal from the Order March 4, 2014
              In the Court of Common Pleas of Huntingdon County
                       Civil Division at No(s): 2013-01439


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 10, 2015

       Ricky Tejada appeals the order entered on March 4, 2014, wherein the

trial court overruled his objection to Appellee’s1 petition for discovery of his

medical and mental health records from the correctional facility where he is

incarcerated. We affirm.

       Appellant is currently serving an aggregate term of twenty to forty

years incarceration for attempted homicide, aggravated assault, simple

assault, and reckless endangerment in connection with the shooting of Luis

Villatoro. See Commonwealth v. Tejada, 834 A.2d 619 (Pa.Super. 2003).

Lynn Gonzalez (“Nurse Gonzalez”) is a certified nursing practitioner who
____________________________________________


1
  As the caption accurately reflects, Appellant initiated this action against
certified nursing practitioner Gonzalez of SCI Smithfield. That party is
identified in the certified record as Lynn Gonzalez.
J-S73002-14



administers health care to prisoners, presumably pursuant to a contract with

the Department of Corrections or the individual correctional facilities. While

incarcerated at SCI Camp Hill, Appellant was placed in the restricted housing

unit. He was subsequently transferred to the equivalent housing unit at SCI

Smithfield.

       During September 2013, Appellant contacted the medical staff at SCI

Smithfield to obtain multivitamins and dandruff shampoo pursuant to

prescriptions2 that he was issued while imprisoned at SCI Camp Hill.

However, the health care administrator at SCI Smithfield determined that

Appellant’s prescriptions had been discontinued when Appellant arrived at

that facility.   Additionally, the health care administrator denied Appellant’s

request for HIV and hepatitis testing.           Appellant filed a formal grievance

regarding the administrator’s decisions, and the prison issued a response on

October 1, 2013, informing him that Nurse Gonzalez reviewed his case and

determined that no clinical reasons existed to order the requested treatment

or diagnostic tests.




____________________________________________


2
  Appellant styles the documents authorizing the vitamins and dandruff
shampoo as prescriptions; however, the prison documents contained in the
certified record refer to the authorizations interchangeably as prescriptions
and subscriptions. While nothing in the record suggests that Appellant
would have required prescriptions to obtain the instant over-the-counter
medications if he was not incarcerated, we refer to the authorizations as
prescriptions for consistency.



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      On October 30, 2013, Appellant initiated the underlying proceedings

by writ of summons.       Thereafter, he filed a request for pre-complaint

discovery. Nurse Gonzalez objected to the discovery request and countered

with a rule to file a complaint.   The trial court sustained her objection to

discovery and issued a rule directing Appellant to file his civil complaint.

Appellant failed to file a formal complaint; however, on February 6, 2014, he

filed a self-styled “Pa.R.C.P. 1001 Action” wherein he alleged, albeit

clumsily, that Nurse Gonzalez (1) fraudulently refused to provide him health

care; (2) breached an implied contract and fiduciary duty owed to Appellant;

and (3) inflicted emotional distress. As it relates to the final count regarding

emotional distress, Appellant specifically alleged that Nurse Gonzalez’s

actions created in him,

      a despair so fiery [that] a phobia of some sort developed as he
      encountered other medical staff due to such mental anguish. As
      a direct and proximate result of [Nurse Gonzalez’s] actions, he
      has trouble sleeping and lives with the fear that he might die or
      get seriously ill because of [Nurse Gonzalez’s] concept of health
      care.

Pa.R.C.P. 1001 Action, 2/6/14, at 6-7.

      Additionally, on the same date, Appellant filed an application for relief,

wherein he averred that (1) he “has a right to diagnosis as well as treatment

[for] illnesses per 37 Pa.Code 93.12 and 91.2 . . . for cancer[;]” and that

Appellee injured him by “refusing to not only diagnose, but [also] treat the

plaintiff for hepatitis[,] which can be fatal.” Application for relief, 2/6/14, 1

(emphasis in original).   Appellant entreated that the trial court order Ms.


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Gonzalez to “administer blood tests for diagnostic purposes and competently

treat any and all illness confirmed forthwith[.]” Id. at 2.

       On February 12, 2014, Nurse Gonzalez issued notice of her intent to

serve subpoenas to produce documents pursuant to Pa.R.C.P. 4009.22.

Specifically, Nurse Gonzalez requested, inter alia, Appellant’s medical and

mental health records and documentation of any grievance and misconduct

proceedings at SCI-Smithfield relating to this case.       Appellant objected to

the proposed request, and the trial court overruled the objections on March

4, 2014. Thereafter, Appellant filed a petition to certify the March 4, 2014

order as an appealable interlocutory order, presumably pursuant to Pa.R.A.P.

312.    The trial court denied Appellant’s petition summarily.        Undaunted,

however, on March 19, 2014, Appellant filed a pro se notice of appeal from

the March 4, 2014 order.         The trial court did not order Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Instead, the trial court issued a one-page memorandum wherein it

concluded that the March 4, 2014 order was an interlocutory order and

requested that this Court dismiss the appeal. The trial court did not address

the merits of Appellant’s assertion that the information was privileged. 3




____________________________________________


3
   Indeed, the trial court interpreted Appellant’s argument as asserting that
the medical and mental health records that Nurse Gonzalez sought were
irrelevant.



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     Meanwhile, prior to filing the notice of appeal, Appellant filed a motion

for a protective order seeking to prevent Nurse Gonzalez from reviewing the

requested documents.    That motion was also denied, and Nurse Gonzalez

ultimately served the proposed subpoenas. She indicates in her brief that

SCI-Smithfield subsequently produced part of Appellant’s health records

along with documentation that Appellant had surreptitiously destroyed the

remainder of his medical file while examining it on October 15, 2014.

     Appellant levels one question for our review, which we restate for

clarity as follows: Whether the trial court erred in overruling Appellant’s

objection to Nurse Gonzalez’s notice to issue a subpoena to produce

documents relating to, inter alia, Appellant’s medical and mental health

records at SCI-Smithfield. See Appellant’s brief at 5.

     At the outset, we confront whether the March 4, 2014 order overruling

Appellant’s objection to Nurse Gonzalez’s discovery request was appealable.

The March 4, 2014 order is neither final nor appealable as of right.     See

Gormley v. Edgar, 995 A.2d 1197, 1200 (Pa.Super. 2010) (generally, order

compelling discovery is not final); Pa.R.A.P. 311 and 341.       Additionally,

Appellant does not challenge the trial court’s denial of his request to appeal

the interlocutory order by permission pursuant to Rule 312.       Instead, he

asserts that the March 4, 2014 order is reviewable as a collateral order

pursuant to Pa.R.A.P. 313.    He supplemented this position in subsequent




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J-S73002-14


correspondence with this Court that we initiated sua sponte to determine the

propriety of this appeal.

      Discovery orders involving claims of privilege are subject to Rule 313.

Id.    In In re W.H., 25 A.3d 330, 334-335 (Pa.Super. 2011), we

summarized the pertinent considerations as follows:

      Under Pennsylvania law, an appeal may be taken only from an
      interlocutory order appealable as of right, a final order, a
      collateral order, or an interlocutory order by permission.
      Radakovich v. Radakovich, 846 A.2d 709, 714 (Pa.Super.
      2004); Pa.R.A.P. 311, Pa.R.A.P. 312, Pa.R.A.P. 341. [The order]
      is not a final order or a interlocutory order appealable by right or
      permission[.      Hence,] we must determine whether it is
      reviewable as a collateral order.

            Our Supreme Court codified the collateral order doctrine
      into Pa.R.A.P. 313. Rule 313 provides as follows:

             (a) General rule. An appeal may be taken as of right
      from a collateral order of an administrative agency or a lower
      court.

            (b) Definition. A collateral order is an order separable
      from and collateral to the main cause of action where the right
      involved is too important to be denied review and the question
      presented is such that if review is postponed until final judgment
      in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.

      In addition, the In re W.H. Court continued,

                The “collateral order doctrine” exists as an
         exception to the finality rule and permits immediate
         appeal as of right from an otherwise interlocutory order
         where an appellant demonstrates that the order appealed
         from meets the following elements: (1) it is separable
         from and collateral to the main cause of action; (2) the
         right involved is too important to be denied review; and
         (3) the question presented is such that if review is

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J-S73002-14


         postponed until final judgment in the case, the claimed
         right will be irreparably lost. See Pa.R.A.P. 313; see
         also Witt v. LaLonde, 2000 PA Super 347, 762 A.2d
         1109, 1110 (Pa.Super. 2000) (citations omitted).

      In Re J.S.C., 851 A.2d 189, 191 (Pa.Super. 2004).             Our
      Supreme Court has directed that Rule 313 be interpreted
      narrowly so as not to swallow the general rule that only final
      orders are appealable as of right. Geniviva v. Frisk, 725 A.2d
      1209, 1214 (Pa. 1999). To invoke the collateral order doctrine,
      each of the three prongs identified in the rule’s definition must
      be clearly satisfied. J.S. v. Whetzel, 860 A.2d 1112, 1117
      (Pa.Super. 2004).

In re W.H., supra at 335.

      In Dougherty v. Heller, 97 A.3d 1257 (Pa.Super. 2014) (en banc),

this Court recently confronted a similar issue, and concluded that an appeal

from an order denying a motion for a protective order regarding whether to

videotape a deposition satisfied Rule 313. In Dougherty, a self-described

public figure sued a journalist for critical remarks published in a column that

the journalist authored. While the journalist later retracted the comments

and issued an apology in the hardcopy publication, she delayed removing

her original statements from her Facebook page, and the story remained

accessible on a third-party website for approximately two years.        During

discovery, the journalist desired to videotape Dougherty’s deposition

testimony.    Dougherty objected to the use of video on the ground that

potentially embarrassing or inflammatory portions of the recording could be

released to the public. Thereafter, Dougherty filed a motion for protective

order, which the trial court denied.




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      Prior to reviewing the merits of the ensuing appeal, we reasoned that

(1) the assertion of a privacy interest in pretrial discovery was separable

from the underlying defamation claim; (2) privacy rights “[fall] within the

class of rights that are too important to be denied review[;]” and (3) the

privacy interest would be irreparably lost absent collateral review.       Id. at

1262-1263 (quoting Melvin v. Doe, 836 A.2d 42, 50 (Pa. 2003)). Thus, we

concluded that Dougherty’s invocation of his privacy interest was suitable for

collateral review.

      Herein, similar to the scenario we addressed in Dougherty, the order

overruling Appellant’s objection to Nurse Gonzalez’s discovery request

satisfies Rule 313. First, Appellant’s assertion of a privacy interest in pretrial

discovery is clearly separable from his fraud, breach of contract, and

intentional infliction of emotional distress claims.   Stated simply, we need

not examine the merits of Appellant’s underlying claims in order to

determine the extent of his privacy interest in his medical and mental health

records. Second, mindful of the protection this Court has afforded the right

to privacy in pretrial discovery, we find that Appellant’s privacy interests in

his medical and mental health records are sufficiently important to warrant

collateral review of a discovery ruling.    See Dougherty, supra (collecting

cases) Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1258 (Pa.Super.

2011) (collateral review of discovery order involving purportedly privileged

material); J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa.Super. 2004)

(witness’s privacy interest in income was suitable for collateral review);

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J-S73002-14



Commonwealth v. Alston, 864 A.2d 539, 546 (Pa.Super. 2004) (collateral

review of privacy interests relevant to pretrial psychiatric evaluation).

      Finally, we observe that Appellant’s requested relief, i.e., precluding

Nurse Gonzalez from accessing his medical and mental health records, might

be irreparably lost if review is postponed until the civil case is resolved. As

we explained in Dougherty, supra at 1263 (citations omitted), “The nature

of a litigant's privacy interest is similar to a defamation defendant’s First

Amendment right to anonymity, or a litigant's property interest in a trade

secret. In each case, an appellant seeks to keep private or secret what may

otherwise become public, and in each case, the loss of privacy or secrecy

would be irreparable.” Thus, we must address the propriety of the trial court

order directing Appellant to reveal his medical and mental health records at

this preliminary stage of the civil litigation.         Once the confidential

information is released, the effect of the trial court’s decision on Appellant’s

privacy rights cannot be negated. As we conclude that the March 4, 2014

order satisfied all three prongs of the collateral order doctrine, this appeal is

proper.

      The following legal principle frames our review of the discovery

request.   “Generally, in reviewing the propriety of a discovery order, our

standard of review is whether the trial court committed an abuse of

discretion. However, to the extent that we are faced with questions of law,

our scope of review is plenary.” Gormley, supra at 1202.




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J-S73002-14



       Characterizing his cause of action against Nurse Gonzalez as an

impairment of contract, Appellant asserts that the discovery request for his

psychiatric records and files concerning infectious diseases was tantamount

to an irrelevant “fishing expedition” that was performed in “bad faith[.]”

Appellants brief at 10.         He continues that the court’s discovery order

impermissibly infringed on his right of confidentiality pursuant to Pa.R.C.P.

4011 (a)(c) and (d).4          Relying on Pa.R.C.P. 4012, regarding protective

orders, he further contends that the trial court erred in failing to limit the

scope of discovery and order that the matter of his medical and mental

health records were not subject to disclosure. Id. at 10-11. Additionally,

Appellant alludes to 42 Pa.C.S §§ 5929 and 5944 concerning the respective

statutory privileges covering the physician/patient and psychologist/patient


____________________________________________


4
   Pa.R.C.P. 4011, styled Limitation of Scope of Discovery, provides as
follows:

       No discovery, including discovery           of   electronically   stored
       information, shall be permitted which

       (a) is sought in bad faith;

              ....

       (c) is beyond the scope of discovery as set forth in Rules 4003.1
       through 4003.6;

       (d) is prohibited by any law barring disclosure of mediation
       communications and mediation documents[.]




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J-S73002-14



relationships.5     However, Appellant’s precise argument relative to these

provisions is unclear.


____________________________________________


5
  Those statutes, which apply to depositions and witnesses in civil cases,
provide as follows:

       § 5929. Physicians not to disclose information

       No physician shall be allowed, in any civil matter, to disclose any
       information which he acquired in attending the patient in a
       professional capacity, and which was necessary to enable him to
       act in that capacity, which shall tend to blacken the character of
       the patient, without consent of said patient, except in civil
       matters brought by such patient, for damages on account of
       personal injuries.

              [. . . .]

       § 5944. Confidential communications to psychiatrists or licensed
       psychologists

       No psychiatrist or person who has been licensed under the act of
       March 23, 1972 (P.L. 136, No. 52), . . . to practice psychology
       shall be, without the written consent of his client, examined in
       any civil or criminal matter as to any information acquired in the
       course of his professional services in behalf of such client. The
       confidential    relations  and    communications     between     a
       psychologist or psychiatrist and his client shall be on the same
       basis as those provided or prescribed by law between an
       attorney and client.

42 Pa.C.S. §§ 5929, 5944. We observe that § 5929, which creates the
physician/patient privilege, expressly provides that the privilege is waived in
civil matters for personal injury. Although this provision is potentially
applicable herein, since Appellant’s artless pro se pleadings sought damages
in assumpsit rather than tort, we forgo a mechanical application of § 5929 to
waive the confidentiality of Appellant’s prison medical file. Section 5944
does not contain a similar waiver provision.



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       Nurse Gonzalez counters that, by alleging specific medical and mental

health injuries in       his complaint,        Appellant waived the   privileges of

confidentiality that he seeks to invoke. This argument is founded upon our

holding in Kraus v. Taylor, 710 A.2d 1142 (Pa.Super. 1998), appeal

dismissed as improvidently granted, 743 A.2d 451 (Pa. 2000) (per curiam)

and Gormley supra.            In Kraus, the plaintiff-appellant sued Taylor for

negligence after the automobile Taylor was operating struck Kraus while

Kraus was attempting to cross a road at approximately 12:00 a.m. Kraus

sought damages for, inter alia, permanent injuries stemming from the

collision.   During the ensuing jury trial, Taylor presented Kraus’s medical

records to establish that Kraus suffered from chronic drug and alcohol abuse

and submitted evidence that Kraus’s blood alcohol content exceeded 0.25

percent when the collision occurred.             As it relates to the issue that is

pertinent in the case at bar, Kraus invoked the statutory privileges outlined

in “50 P.S. § 7111 (confidentiality of records of treatment in publicly funded

mental facilities), 71 P.S. § 1690.108 (confidentiality of records of drug and

alcohol abuse treatment), and 42 Pa.C.S. § 5944 (confidentiality of

communications to licensed psychologists)” to preclude the evidence of his

prolonged substance abuse. Id. at 1144.6 In overruling the objections, the


____________________________________________


6
   In addition, Kraus asserted that, as a pedestrian, evidence of his
intoxication at the time of the accident was irrelevant. The trial court
rejected this position, and we affirmed the court’s ruling on appeal.



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trial court concluded that Kraus impliedly waived the statutory privileges of

confidentiality by filing a personal injury suit that placed his life expectancy

at issue.

      On appeal, we were tasked with determining whether the evidence of

Kraus’s history of drug and alcohol abuse was admissible.        We held that

Kraus waived the confidentiality provisions expressed in the Mental Health

Procedures Act (“MHPA”) and the Judicial Code. Specifically, we reasoned,

             Allowing appellant to pursue a claim for permanent injury,
      while simultaneously barring appellees from access to appellant's
      long history of drug and alcohol abuse, would be manifestly
      unfair and grossly prejudicial. We cannot believe that the
      Pennsylvania General Assembly intended to allow a plaintiff to
      file a lawsuit and then deny a defendant relevant evidence, at
      plaintiff's ready disposal, which mitigates defendant's liability.
      Rather the General Assembly must have intended the privileges
      to yield before the state's compelling interest in seeing that truth
      is ascertained in legal proceedings and fairness in the adversary
      process. Accordingly, we conclude that appellant impliedly
      waived the various statutory privileges he asserts by filing this
      lawsuit. Because the records were not privileged and it was
      within the court's discretion to admit the evidence, the trial court
      committed no reversible error in admitting the records of
      appellant's chronic alcohol and drug abuse.

Id. at 1145 (quotation marks and citations omitted). Hence, Kraus stands

for the proposition that, since a plaintiff’s prolonged substance abuse effects

the length of time the person is expected to live, it can be properly admitted

at trial to refute the use of standard life expectancy charts for purposes of a

future-wage-loss claim.




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J-S73002-14


      Similarly, in Gormley, supra, we addressed whether the plaintiff in a

personal injury action to recover damages for injuries sustained in a motor

vehicle accident was required to produce certain medical records.              The

plaintiff invoked the confidentiality provisions contained in § 7111(a) of the

MHPA, the Mental Health and Mental Retardation Act of 1966, the

Pennsylvania Drug and Alcohol Abuse Control Act, and § 5944 of the Judicial

Code which we reproduced supra.             After determining that the plaintiff’s

reliance upon the first three provisos was misplaced, we concluded that the

privilege   relating   to   a   patient’s   confidential   communications   with    a

psychologist applied to that case, but was waived because the plaintiff

placed her mental health at issue by seeking damages for anxiety.                  We

reasoned,

      “The purpose of the psychologist/patient privilege is to aid in the
      effective treatment of the client by encouraging the patient to
      disclose information fully and freely without fear of public
      disclosure.” Zane v. Friends Hospital, [836 A.2d 25, 33 (Pa.
      2003)]. The privilege is based upon a strong public policy
      designed to encourage and promote effective treatment and to
      insulate the client's private thoughts from public disclosure.
      Kalenevitch v. Finger, 407 Pa.Super. 431, 595 A.2d 1224
      (1991). This Court holds this privilege in the highest regard,
      recognizing that such confidential statements are the key to the
      deepest, most intimate thoughts of an individual seeking solace
      and treatment. However, such confidential communications are
      only protected to the same extent as those between an attorney
      and his client. The privilege is not absolute; it may be waived.
      Our Commonwealth Court in Rost v. State Board of
      Psychology, 659 A.2d 626, 629 (Pa.Cmwlth.1995), held that
      the privilege may be waived in civil actions “where the client
      places the confidential information at issue in the case.” In those
      circumstances, the client himself or herself has turned the key to
      voluntarily unlock those privileged communications.

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Id. at 1204 (footnote omitted).      Thereafter, we held, “Ms. Gormley

directly placed her mental condition at issue when she alleged that she

suffered from anxiety as a result of the accident. . . . It would clearly

be unfair for a party to seek recovery for anxiety if that mental health

issue predated the accident.” Id. at 1206.

      Instantly, Nurse Gonzalez asserts that Appellant’s purported injuries

stemming from her alleged failure to diagnose and treat his hypothetical

conditions and infections, which he feared were terminal, and her allegedly

improper   refusal   to   supply   the   requested   dandruff    shampoo     and

multivitamins opened the door to her discovery of Appellant’s pertinent

medical and mental health files. Referring to the perspective we reiterated

in Gormley, Nurse Gonzalez posits that a plaintiff cannot initiate a lawsuit

and then deny the defendant access to relevant evidence that would

mitigate the defendant’s liability. Nurse Gonzalez’s brief at 2 (unpaginated).

For the following reasons, we agree.

      In Octave ex rel. Octave v. Walker, 103 A.3d 1255 (Pa. 2014), a

case involving the applicability of the confidentiality provisions articulated in

the MHPA, our Supreme Court addressed whether, and under what

circumstances, a plaintiff to a civil action may waive statutory confidentiality

protections.   In that case, the plaintiff, the wife of the decedent, filed a

complaint in her own right and on behalf of the decedent. The lawsuit stems

from an incident in which the decedent jumped under the trailer section of a

moving tractor-trailer rig. While the decedent survived the initial incident,

                                     - 15 -
J-S73002-14



the mental and physical trauma rendered him incapacitated, and he later

died from his injuries.

      Following an inquiry of disinterested eyewitnesses, the Pennsylvania

State Police issued a report finding that the decedent had attempted to

commit suicide by jumping under the trailer of the truck. Nevertheless, the

plaintiff filed the underlying lawsuit alleging, inter alia, that the Pennsylvania

Department of Transportation (“DOT”) and the operator of the truck were

negligent. As reported by the High Court, “The complaint alleged [decedent]

suffered a number of mental and physical injuries as a result of the incident

and sought damages.” Id. at 1256. The defendants filed a motion for leave

to access and copy sealed files pertaining to the decedent’s involuntary

commitments pursuant to the MHPA. The trial court denied the motion, the

Commonwealth Court reversed, and our Supreme Court granted allocatur.

      Framing the issue as a case of first impression, the High Court

examined this Court’s holdings in Kraus and Gormley in relation to the

prevailing perspective of our sister jurisdictions and federal courts applying

state law. Noting that it viewed evidentiary privileges “to be in derogation of

the search for truth, and . . .    generally disfavored[,]” the Court held, “a

patient waives his confidentiality protections under the MHPA where, judged

by an objective standard, he knew or reasonably should have known his

mental health would be placed directly at issue by filing the lawsuit.” Id. at




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J-S73002-14



1262.7 The Court applied the newly-announced standard to the facts of the

case therein and concluded that, in filing the suit against the defendants, the

plaintiff knew that the defendants would invoke the police report as evidence

that the decedent attempted to commit suicide by jumping under the truck’s

trailer. The Court opined, “[the police report] put appellants on notice that if

they filed a civil action, appellees would likely advance a suicide defense and

use [the decedent’s] purported mental infirmity in order to absolve them of

any liability.” Id. at 1263.

       While the instant case does not implicate the MHPA, our Supreme

Court’s rationale applies herein. Similar to the High Court’s perspective of

the facts in Octave ex rel. Octave, supra, we find that Appellant in the

case at bar knew or reasonably should have known that his medical and

mental health records would be placed directly at issue by filing the lawsuit

against Nurse Gonzalez. Specifically, Appellant complained, inter alia, that

Nurse Gonzalez caused him to suffer severe emotional distress based on her

____________________________________________


7
  The Supreme Court implored trial courts to “use great caution in accepting
this form of implicit waiver [in light of] the importance of the confidentiality
protections afforded by the MHPA[.]” Octave ex rel. Octave v. Walker,
103 A.3d 1255, 1263 (Pa. 2014).             The High Court also praised the
Commonwealth Court for directing that the mental health records were only
subject to in camera review. Id. at 1264. Although the present case does
not concern the MHPA, we recognize that the trial court did not expressly
limit Appellant’s records to in camera review. Inasmuch as the basis and
scope of Appellant’s assertion of confidentiality are unfocused, the trial
court’s failure to limit review of the records to an in camera inspection does
not alter our disposition.



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fraudulent refusal to provide him health care. He also sought damages for

Nurse Gonzalez’s alleged failure to detect cancer or diagnose potential

hepatitis and HIV infections. However, Appellant not only failed to assert if

or when he developed any of the foregoing conditions, he also failed to

document when he developed the fiery despair, phobia, and insomnia that

he attributes to Nurse Gonzalez’s actions.   Thus, Appellant was on notice

that, when he filed the civil action against Nurse Gonzalez, she would likely

assert the absence of any diagnoses as a defense to liability for the alleged

refusal to provide health care, and rely upon the dearth of records

documenting Appellant’s claimed injury to absolve herself from any exposure

to damages associated with the potentially specious lawsuit.

     Thus, pursuant to our High Court’s rationale in Octave ex rel.

Octave, supra and our holdings in Kraus and Gormley, Appellant implicitly

waived any claims of privilege regarding the discovery of his relevant

medical and mental health records. We therefore affirm the trial court order

overruling Appellant’s objection to Nurse Gonzalez’s discovery request.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015


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