                                               131 Nev., Advance Opinion 2.1
              IN THE SUPREME COURT OF THE STATE OF NEVADA


    RYAN MITCHELL, D.O.,                                         No. 63076
    Petitioner,
    vs.
    THE EIGHTH JUDICIAL DISTRICT                                    FILED
    COURT OF THE STATE OF NEVADA,
    IN AND FOR THE COUNTY OF                                         APR 30 2015
    CLARK; AND THE HONORABLE
    KENNETH C. CORY, DISTRICT
    JUDGE,
    Respondents,
       and
    ALEC BUNTING, BY AND THROUGH
    HIS GUARDIAN AD LITEM, STELLA
    RAVELLA; AND STELLA RAVELLA,
    INDIVIDUALLY,
    Real Parties in Interest.


                   Original petition for a writ of mandamus d recting the district
    court to sustain the privileges asserted by a defendant loctor in a medical
    malpractice case as to his personal counseling and treatment records.
                   Petition granted in part and denied in part.

    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.




    BEFORE THE COURT EN BANC.




-   7/Z05: (lorre_69-eti ?e,4/ Leitrz -tv pu-i,1147//5, CY
                                                                               - 31 (X)
                                                 OPINION
                By the Court, PICKERING, J.:
                            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.
                                                      I.
                            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

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                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. 1


                               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

                      1 Thisis Mitchell's second writ petition. Argument on the first
                petition was canceled after Mitchell's bankruptcy triggered the automatic
                stay in 11 U.S.C. § 362. After a series of reports on the bankruptcy case,
                we dismissed the first petition without prejudice to avoid having it linger
                indefinitely on the docket. When Ravella obtained relief from the
                bankruptcy stay, she returned to district court, which again denied
                Mitchell's privilege claims, prompting this second writ proceeding. A
                three-judge panel heard argument on the petition, then transferred it to
                the en bane court pursuant to IOP 13(b).

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                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. 2 Together, these


                      2Although   one of Mitchell's doctors produced his records before
                Mitchell could object, Mitchell asks that, if we sustain his privilege claims,
                we direct the district court to enter an order in limine prohibiting
                reference to the produced records at trial and requiring that all copies of
                the records be returned to Mitchell or destroyed. The other two providers
                have yet to produce their records, as the district court's production order
                has been stayed.

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                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 Nev. Adv. Op. No. 69, 331 P.3d 905, 909-
                10 (2014). Since the analysis differs for the two privileges, we discuss
                them separately, taking the doctor-patient privilege first.
                                                      A.
                            A patient who voluntarily puts his physical or mental
                condition in issue in a lawsuit loses the protection of the doctor-patient
                privilege for communications with his doctor about that condition. 1
                Kenneth S. Broun et. al, McCormick on Evidence § 103, at 631 (7th ed.
                2013). Variously referred to as waiver by placing in issue or the in-issue
                or at-issue waiver doctrine, this judicially developed rule promotes
                fairness, see 8 John Henry Wigmore, Evidence § 2388, at 855 (McNaugton
                rev. 1961), and discourages abuse of the privilege; it "prevents the patient
                from putting his physical or mental condition in issue and then asserting
                the privilege to prevent an adversary from obtaining evidence that might
                rebut the patient's claim." 25 Charles Alan Wright & Kenneth W.
                Graham, Jr., Federal Practice and Procedure: Evidence § 5543, at 320
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                (1989). Today, many states, including Nevada, have amended their
                doctor-patient privilege statutes to create an express patient-litigant
                exception that, depending on the form of the exception statute, directs the
                same or a similar result as the at-issue waiver doctrine.            See NRS
                49.245(3); Edward J. Imwinkelried, The New Wigmore: Evidentiary
                Privileges § 6.13.3 (2d ed. 2014).
                                                       1.
                            Citing out-of-state case law, e.g., Chung v. Legacy Corp., 548
                N.W.2d 147 (Iowa 1996); Shamburger v. Behrens, 380 N.W.2d 659 (S.D.
                1986), Mitchell insists that neither the at-issue waiver doctrine nor the
                patient-litigant exception properly applies unless the patient is the one
                who puts his physical or mental condition in issue. And, indeed, this is
                the law stated in Chung, Shamburger, and other like cases. See also NRS
                49.385 (providing that a privilege is waived if the holder "voluntarily
                discloses or consents to disclosure of any significant part of the [privileged]
                matter"). If the holder of the privilege denies a litigation adversary's
                allegations about his physical or mental condition, he has not voluntarily
                put his condition in issue. Since waiver requires an affirmative, voluntary
                act by the holder of the claim or right to be waived, see Mill Spex, Inc. v.
                                                                                 -




                Pyramid Precast Corp., 101 Nev. 820, 822, 710 P.2d 1387, 1388 (1985)
                ("[W]aiver is the intentional relinquishment of a known right"), such
                forced denials normally do not waive the privilege.       See Broun, supra, §
                103, at 633 ("With respect to defenses, a distinction is clearly to be seen
                between the allegation of a physical or mental condition, which will effect
                the waiver [of the doctor-patient privilege], and the mere denial of such a
                condition asserted by the adversary, which will not."); see also Leavitt v.
                Siems, 130 Nev. Adv. Op. No. 54, 330 P.3d 1, 7 (2014) ("Bringing a claim
                for personal injury or medical malpractice results in a limited waiver of
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                the physician-patient privilege with regard to directly relevant and
                essential information necessary to resolve the case.").
                             Mitchell did not place his drug addiction in issue in the
                underlying malpractice suit; Ravella did. Analyzed purely as a matter of
                waiver, Mitchell's doctor-patient privilege thus remains intact and is not
                affected by Ravella's malpractice and negligent supervision claims. But
                our analysis does not end with the at-issue waiver doctrine. We still must
                consider Nevada's statutory patient-litigant exception. 3
                                                      2.
                             NRS 49.245(3) states the patient-litigant exception to
                Nevada's doctor-patient privilege as follows:
                             There is no privilege under NRS 49.225 . . . [a's to
                             [communications] [41 relevant to an issue of the



                      3 Mitchell cites NRS 458.280 in support of his petition for writ relief,
                which provides that records created at an alcoholism and substance abuse
                treatment center are confidential and "must not be disclosed without
                consent of the patient." Mitchell did not make this argument in the
                district court and it is therefore waived. Old Aztec Mine, Inc. v. Brown, 97
                Nev. 49, 52, 623 P.2d 981, 983 (1981).

                      4The  current version of NRS 49.245(3) uses the phrase "written
                medical or hospital records," rather than the word "communications" that
                appeared in the original version of the statute. Compare 1971 Nev. Stat.,
                ch. 402, § 53, at 785, with 1987 Nev. Stat., ch. 449, § 1, at 1036. This
                change was made in 1987 to prevent a defense lawyer from interviewing a
                personal injury plaintiffs doctor privately, without the plaintiffs counsel
                present. See Leavitt, 130 Nev. Adv. Op. No. 54, 330 P.3d at 7. The 1987
                amendment does not affect the issues addressed in this opinion but does
                complicate their discussion. To facilitate comparison of Nevada's version
                of the patient-litigant exception with the model from which it was drawn
                and those enacted in other states, this opinion substitutes the original
                "communications" for "written medical or hospital records."

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                            condition of the patient in any proceeding in which
                            the condition is an element of a claim or defense.
                A plain reading of the statute's text does not support a requirement that
                the patient must place his condition in issue for the exception to terminate
                the privilege. Rather, the statute seems to say that, all other conditions
                being met—i.e., there is: a confidential communication; that is relevant; to
                an issue of the patient's condition; in a proceeding; in which the condition
                is an element of a claim or defense—the exception applies, regardless of
                who raised the claim or defense that triggered it.
                            Essentially, Mitchell treats NRS 49.245(3) as a codification of
                the at-issue waiver doctrine. He asks us to import into the statute a
                requirement that the patient must assert the condition-based claim or
                defense for the exception to apply. But we cannot enlarge the doctor-
                patient privilege by judicially narrowing one of its principal exceptions
                without running afoul of NRS 49.015, which constrains nonconstitutional
                privileges to those the Legislature has authorized. Cf. Rogers v. State, 127
                Nev. Adv. Op. No. 25, 255 P.3d 1264, 1266 (2011) (Nevada's doctor-patient
                privilege depends on statute, not common law). And the sparse legislative
                history that exists does not support Mitchell's position. If anything, the
                historical context suggests its studied rejection.
                            Nevada adopted its current evidence code in 1971.      See 1971
                Nev. Stat., ch. 402. The Nevada Commission that was tasked with
                proposing a modern draft evidence code drew on the Preliminary Draft of
                Proposed Rules of Evidence for the United States District Courts and
                Magistrates submitted by the Advisory Committee on Federal Rules of




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                Evidence (Draft Federal Rules), reprinted in 46 F.R.D. 161 (1969). 5 See
                Legislative Commission of the Nevada Legislative Counsel Bureau, A
                Proposed Evidence Code, Bulletin No. 90, at 1 (Nev. 1970) [hereinafter
                Bulletin No. 90]. It also consulted the Model Rules of Evidence proposed
                by the National Conference of Commissioners on Uniform State Law and
                the ABA in 1953 (the Uniform Act), the California Evidence Code, and
                existing Nevada law. Bulletin No. 90 at 1. The Draft Federal Rules
                proposed to eliminate the general doctor-patient privilege altogether, for
                policy reasons. 46 F.R.D. at 259-60. In its place, Draft Federal Rule 5-04
                offered a much narrower psychotherapist-patient privilege. See id. at 257-
                59. The Nevada Commission did not agree with eliminating the doctor-
                patient privilege, so it "adapted" the psychotherapist-patient privilege in
                Draft Federal Rule 5-04 by "enlarg[ing it] to embrace all doctors of
                medicine, dentistry and osteopathy as well as licensed psychologists."
                Bulletin No. 90, § 53, at 24 cmt.
                             Draft Federal Rule 5-04(d)(3) included a patient-litigant
                exception, as follows:
                             There is no privilege under this rule as to
                             communications relevant to an issue of the mental
                             or emotional condition of the patient in any
                             proceeding in which he relies upon the condition
                             as an element of his 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 claim or defense.



                      5 Itwas not until July 1, 1975, four years after Nevada adopted its
                evidence code, that the Federal Rules of Evidence went into effect. Act of
                Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926.

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                46 F.R.D. at 259. Unlike NRS 49.245(3), Draft Federal Rule 5-04(d)(3)
                limited the patient-litigant exception to conditions on which the patient
                relied as an element of his claim or defense (except for a deceased patient's
                condition, on which any party's reliance terminates the privilege). To
                convert Draft Federal Rule 5-04(d)(3) to NRS 49.245(3) (1971) required the
                following changes to the former:
                              There is no privilege under this rule [NRS 49.225]
                              as to communications relevant to an issue of the
                              ment-al—er—emetienal condition of the patient in


                              after the patient's death, in any proceeding in
                              which •: : - the condition as [is]
                              an element of his [a] claim or defense.
                This comparison dispels any notion that the Nevada Legislature, through
                its Legislative Commission, meant but somehow forgot to limit the
                exception in NRS 49.245(3) to claims the patient initiated. On the
                contrary, it suggests that contemporary drafters knew how to limit the
                exception to patient-raised claims or defenses, 6 but that Nevada's evidence
                code authors, for whatever reason, chose a different path.




                      6 The Uniform Act and California Evidence Code, which the Nevada
                Legislative Commission also consulted, see Bulletin No. 90 at 1, likewise
                limited their patient-litigant exceptions to claims or defenses the patient
                initiated. Uniform Act Rule 223(3) ("There is no privilege under Rule 221
                in an action in which the condition of the patient is an element or factor of
                the claim or defense of the patient or of any party claiming through or
                under the patient." (emphasis added)); Cal. Evid. Code § 996(a) (West
                2009) ("There is no [medical] privilege. . . as to a communication relevant
                to an issue concerning the condition of the patient if such issue has been
                tendered by . . . [t]he patient.").

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                            Comparable differences in statutory text also distinguish
                Shamb urger and Chung, referenced above as among Mitchell's primary
                authorities. Like Draft Federal Rule 5-04(d)(3) but unlike NRS 49.245(3),
                the patient-litigant exception considered in Shamburger, S.D. Codified
                Laws § 19-13-11 (1986), read: "There is no privilege under § 19-13-7 as to a
                communication relevant to an issue of the physical, mental or emotional
                condition of the patient in any proceeding in which he relies upon the
                condition as an element of his 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 claim or defense." 380 N.W.2d at 662 n.4. And the
                exception in Chung, Iowa Code § 622.10 (1993), only applied in "a civil
                action in which the condition of the person in whose favor the [privilege
                runs] is an element or factor of the claim or defense of the person or of any
                party claiming through or under the person," 548 N.W.2d at 149.
                Shamburger and Chung thus do not offer much interpretive guidance,
                since the statutes they addressed expressly adopted the limitation Mitchell
                asks us to imply into NRS 49.245(3).
                            We have not found another patient-litigant exception exactly
                like Nevada's, but Texas's and Utah's are close. Tex. R. Evid. 509(e)(4)
                (2003) (the doctor-patient privilege does not apply if "any party relies upon
                the [patient's physical, mental, or emotional] condition as a part of the
                party's claim or defense [and the communication or record is relevant to
                that condition]"); Utah R. Evid. 506(d)(1) (2013) (no privilege exists "[for
                communications relevant to an issue of the physical, mental, or emotional
                condition of the patient: [(A)] in any proceeding in which that condition is
                an element of any claim or defense, or [(B)] after the patient's death, in
                any proceedings in which any party relies upon the condition as an

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                element of the claim or defense"). By dispensing with the requirement
                that the patient initiate the claim or defense, these statutes expand the
                patient-litigant exception and abrogate the patient's control over the
                privilege.
                              Even so, the exceptions are not unlimited. To terminate the
                privilege, the condition must be more than merely relevant to a litigated
                claim or defense; it must be a part (Texas) or an element (Nevada and
                Utah) of the claim or defense. Reading the exceptions as written, without
                requiring that the patient initiate the claim or defense to trigger them,
                thus does not reduce the privileges to the point of absurdity, 7 as Mitchell
                suggests.     See R.K. v. Ramirez, 887 S.W.2d 836, 841-42 (Tex. 1994)
                (disapproving of cases holding that the patient must raise the claim to
                which the condition relates or the privilege would cease to exist; by its
                terms, the patient-litigant exception requires more than mere relevance of
                the condition to a claim or defense to trigger the exception); State v.
                Worthen, 222 P.3d 1144, 1151-52, 1158 (Utah 2009) (recognizing that "[i]f
                feelings themselves were to constitute a mental or emotional condition [for
                purposes of the rule], the exception to the psychotherapist-patient
                privilege would devour the privilege" but nonetheless concluding, on the
                record presented, that the victim's pathological hatred of her parents
                formed an element of the defendant's fabrication defense, subjecting the




                      7 The anti-absurdity doctrine is usually invoked when a statute, as
                written, does not parse; it aides interpretation but "does not license courts
                to improve statutes (or rules) substantively, so that their outcomes accord
                more closely with judicial beliefs about how matters ought to be resolved."
                Jaskolski v. Daniels, 427 F.3d 456, 461 (7th Cir. 2005).

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                 victim's therapy records to in camera review and carefully circumscribed
                 disclosure).
                                Mitchell protests that it is unfair and bad policy to allow
                 Ravella to gain access to his doctor-patient records based on claims she
                 alone raised. But from Ravella's perspective, it is equally unfair to allow
                 Mitchell to suppress evidence by claiming a privilege to which the patient-
                 litigant exception, as written in Nevada, applies. As a policy matter, the
                 debate is not as one-sided as Mitchell assumes.
                                While it is true that the defendant did not have
                                "the litigating initiative", it may be the case that
                                his or her out-of-court behavior is what triggered
                                the lawsuit.. . . Is not a person who says "I was
                                not drunk at the time I operated on the plaintiff"
                                and then claims the privilege to prevent inquiry
                                into his alcoholism as much abusing the privilege
                                as the plaintiff who seeks to close his physician's
                                mouth while asserting serious injury? . . . It is only
                                when one assumes that the person seeking to
                                destroy the status quo is in the poorer moral
                                status than the person allegedly responsible for
                                the status quo that the policy argument for
                                defensive use of the privilege takes on much
                                power. At least the contrary arguments are strong
                                enough to suggest why some people have favored a
                                "qualified" exception that would permit the court
                                to see what justice requires before applying the
                                exception.
                 Wright & Graham, supra, § 5543, at 328 n.65.
                                The policy lines here were drawn by the Legislature, which
                 omitted any requirement that the patient make an issue of his condition
                 for the patient-litigant exception to apply. We decline to read into NRS
                 49.245(3) a limitation it does not state.



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                                      3.
            Regardless of who raised the issue of the patient's condition,
for the patient-litigant exception to apply, the party seeking to overcome
the privilege still must show that the "condition of the patient" is "an
element of a claim or defense" in the proceeding. NRS 49.245(3) (emphasis
added). The term "element" is not defined in NRS Chapter 49. Generally,
an "element" of a claim is a "part of a claim that must be proved for the
claim to succeed." Black's Law Dictionary 559 (8th ed. 2004) (emphasis
added); see Wright & Graham, supra, § 5543, at 330 ("Though 'element' is
not defined, the term is usually used to refer to those fundamental
assertions of fact that were required to be pleaded under the old system of
code pleading." (footnote omitted) (discussing the successor to Draft
Federal Rule 5-04(d)(3))).
            Relevance alone does not make a patient's condition an
element of a claim or defense. At minimum, the patient's condition must
be a fact "to which the substantive law assigns significance." Ramirez, 887
S.W.2d at 842 (applying the more expansive "part" of a claim or defense
requirement of Tex. R. Evid. 509(d)). A defendant who pleads not guilty
by reason of insanity, for example, has asserted a defense that has, as one
of its elements, his insanity. See Wright & Graham, supra, § 5543, at 330-
31. Similarly, a disinherited child who challenges her father's will on the
grounds he was incompetent has asserted a claim about her father's
condition to which legal consequences attach: If proved, the condition
alleged invalidates the will.    Ramirez, 887 S.W.2d at 842-43. In both
instances, the patient's condition is an element of the claim or defense—
not merely relevant—because the claim or defense fails unless the
condition asserted is established in fact.



                                      14
                            Mitchell's drug addiction is not an element of Ravella's
                malpractice claim against him. To establish medical malpractice a
                plaintiff must show that: "(1) . . . the doctor's conduct departed from the
                accepted standard of medical care or practice; (2) . . . the doctor's conduct
                was both the actual and proximate cause of the plaintiffs injury; and
                (3) . . . the plaintiff suffered damages" as a result. Prabhu v. Levine, 112
                Nev. 1538, 1543, 930 P.2d 103, 107 (1996). Ravella counts Mitchell's drug
                addiction as an element of her malpractice claim because his "mental,
                emotional and physical condition contributed to his negligence and falling
                below the standard of care." This argument misses the mark. Of legal
                consequence to a medical malpractice claim is whether the practitioner's
                conduct fell below the standard of care, not why. See Ramirez, 887 S.W.2d
                at 845 (Enoch, J., dissenting). Put another way, Ravella wins if she shows
                that Mitchell's misadministration of the anesthetic fell below the standard
                of care and caused Bunting's injuries; legally, Mitchell's diminished
                capacity doesn't matter. While Mitchell's drug addiction may be relevant
                to, it is not an element of, Ravella's medical malpractice claim. 8
                            We reach the opposite conclusion with respect to Ravella's
                negligent hiring and supervision claims. Unlike her malpractice claim
                against Mitchell, Ravella's negligent hiring and supervision claims against
                his employer require her to establish that the clinic knew or should have
                known that Mitchell was unfit for the position he held. See Hall v. SSF,
                Inc., 112 Nev. 1384, 1392-93, 930 P.2d 94, 99 (1996). For purposes of NRS


                      8 Ravellaalso argues that Mitchell's drug addiction is an element of
                Mitchell's defense that he exercised due care. But just as Ravella need not
                prove Mitchell's addiction to show his breach, Mitchell need not disprove it
                to show that he met the requisite standard of care.

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49.245(3), this makes Mitchell's condition an element of Ravella's negligent
hiring and supervision claims. See Hosey v. Presbyterian Church (U.S.A.),
160 F.R.D. 161, 163-64 (D. Kan. 1995) (holding that a deceased priest's
pedophilia, for which he received psychiatric treatment, was an element of
a plaintiffs negligent hiring and supervision claim against the church that
employed him; thus, the patient-litigant exception terminated the doctor-
patient privilege (similar to Draft Federal Rule 5-04(d)(3), Kansas law
dispensed with the requirement that the patient initiate the claim for the
exception to apply if the patient was deceased)); see also Ramirez, 887
S.W.2d at 843-44 (holding that the Texas patient-litigant exception
terminated the doctor-patient privilege as to communications relevant to a
doctor's unfitness in a case alleging that the defendant hospital and clinic
"knew or should have known of the [doctor's] condition and because of that
condition should have supervised him better or not selected him at all").
                                       4.
            Although not limited to patient-initiated claims or defenses,
the Nevada patient-litigant exception demands close scrutiny when the
claim or defense triggering it is asserted by or on behalf of someone other
than the patient. A patient presumably will not base a claim or defense on
his physical or mental condition unless that condition in fact exists. A
stranger to the doctor-patient relationship, by contrast, may be tempted to
speculate as to the physical or mental condition of his or her adversary,
especially if that will open the door to embarrassing or painful revelations.
To invoke the patient-litigant exception, therefore, the nonpatient must
establish a basis in fact for the district court to conclude that the condition
exists and is an element of a legitimate claim or defense.    Cf. Worthen, 222
P.3d at 1149-50 (a nonpatient must demonstrate to a "reasonable
certainty" that the records sought contain evidence material to the claim

                                       16
                or defense asserted for the district court to proceed with an in camera
                review of them).
                              Ravella's charge that Mitchell was in the throes of active
                substance abuse at the time he operated on Bunting goes well beyond
                speculation. Mitchell's arrests, convictions, and admissions in deposition
                sufficiently establish his addiction and its temporal proximity to the
                surgery to have justified the district court in undertaking an in camera
                review of the medical records relating to Mitchell's treatment for
                substance abuse to determine which should be made available to Ravella
                and the conditions appropriate to their production. Ramirez, 887 S.W.2d
                at 843 (after a prima facie showing is made that the nonpatient has fairly
                invoked the exception, the district court should undertake an in camera
                review of the medical records to "ensure that the production of documents
                ordered, if any, is no broader than necessary, considering the competing
                interests at stake"); see Worthen, 222 P.3d at 1156 (in camera review
                appropriate to restrict production of unprivileged but nonetheless private
                documents); see also NRCP 26(c) ("Upon motion by a party or by the
                person from whom discovery is sought,. . . the court in which the action is
                pending may make any order which justice requires to protect a party or
                person from annoyance, embarrassment, oppression, or undue burden or
                expense.").
                              Mitchell and Ravella litigated the privilege issues in this case
                on an all-or-nothing basis in the district court. Not surprisingly, therefore,
                the district court did not conduct an in camera review of the medical
                records relating to Mitchell's substance abuse treatment. We therefore
                conditionally grant the writ and direct the district court to review the


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                doctor-patient records in camera and enter such orders respecting their
                production and use as are consistent with this opinion.
                                                     B.
                            No basis exists, however, to overcome the privilege that
                attached to Mitchell's and his wife's confidential communications with
                their marital and family therapist under NRS 49.247. Neither Mitchell
                nor his wife put their counseling sessions in issue in the litigation by
                Ravella against Mitchell and Mitchell's employer. The at-issue waiver
                doctrine, therefore, does not apply, for the same reasons it does not apply
                to Mitchell's medical records. And, while NRS 49.249(4) creates a client-
                litigant exception to the marital and family therapist-client privilege
                provided in NRS 49.247, that exception is much narrower than the
                patient-litigant exception in NRS 49.245(3). It provides simply that
                "[t] here is no privilege under NRS 49.247 . . . [a]s to communications
                relevant to an issue of the treatment of the client in any proceeding in
                which the treatment is an element of a claim or defense." (Emphasis
                added.) No issue respecting the treatment provided by the Mitchells'
                marital and family therapist is implicated, much less an element of a
                claim or defense, in this case. For that reason, the exception does not
                apply and the district court is ordered to grant a protective order
                interdicting discovery of the Mitchells' marriage and family therapy
                sessions.
                            We therefore issue a writ of mandamus directing the district
                court to rescind its order rejecting the claims of privilege in this case, to
                protect as privileged the confidential communications between the
                Mitchells and their marital and family therapist, and to proceed



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as outlined in this opinion as to the doctor-patient communications and
records.



                                                              J.
                                   Pickering


We concur:


                          , C.J.



                             J.
Parraguirre




                             J.




                                    19
                DOUGLAS, J., concurring in part and dissenting in part:
                               I join the majority opinion except as to the discussion in
                section III(A)(3) respecting Mitchell's addiction as an element of Ravella's
                malpractice claim against him pursuant to NRS 49.245(3). In my view,
                the majority's reading and interpretation of NRS 49.245(3) and Prabhu v.
                Levine, 112 Nev. 1538, 930 P.2d 103 (1996), is too strident of an
                application.
                               In this case, Mitchell admitted that at the time he operated on
                Bunting he was addicted to Ketamine and Valium, which he had abused
                intermittently for years. However, 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 the deposition that, after his
                arrests, he and his wife were treated for substance abuse. Additionally,
                RaveHa's charge that Mitchell was in the throes of active substance abuse
                at the time he operated on Bunting goes well beyond speculation.
                Mitchell's arrests, convictions, and admissions in deposition sufficiently
                establish his addiction and its temporal proximity to the surgery to have
                justified the district court in undertaking an in camera review of the
                medical records relating to Mitchell's treatment for substance abuse to
                determine which should be made available to Ravella and the conditions
                appropriate to their production. R.K v. Ramirez, 887 S.W.2d 836, 843
                (Tex. 1994) '(after a prima facie showing is made that the nonpatient has
                fairly invoked the exception, the district court should undertake an in
                camera review of the medical records to "ensure that the production of

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                documents ordered, if any, is no broader than necessary, considering the
                competing interests at stake").
                            I submit that Mitchell's admitted addiction is relevant and
                should be considered as an element of Ravella's malpractice claim as to
                whether it contributed to his negligence and whether his conduct fell
                below the standard of care. This made Mitchell's addiction an element of
                Ravella's direct malpractice claim against him and independently justified
                the discovery she sought, with or without the added negligent supervision
                or hiring claim against Mitchell's employer. Almost the identical issue
                confronted the Texas Supreme Court in Ramirez, where, construing
                Texas's comparable patient-litigant exception statute, the majority held
                that the direct malpractice claim against the addicted doctor triggered
                application of the patient-litigant exception. Ramirez, 887 S.W.2d at 838,
                844. I recognize that Texas uses "part" instead of "element" of the claim or
                defense in its statute, but to me that is a distinction without a difference.
                Concern for the addicted doctor's privilege and privacy interests is
                accommodated by requiring in camera review of the documents pre-
                production, and the fashioning of a protective order, if appropriate, under
                NRCP 26(c) before their production is ordered. Rather than parse between
                the elements of the malpractice and negligent hiring/supervision claims, I
                would hold that the patient-litigant exception is triggered by Ravella's
                claims against Mitchell and his employer and let the in camera review and
                protective order afford the safeguards to prevent abuse of the exception.



                                                           ‘ise-wo.•*"
                                                    Douglas

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                SAITTA, J., dissenting:
                           I dissent.




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