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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                    SOHA ABDELRAHMAN, Petitioner,

                                        v.

   THE HONORABLE DANIEL MARTIN, a Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
                MARICOPA, Respondent Judge

                                        v.

      MESA UNIFIED SCHOOL DISTRICT #4, Real Party in Interest

                             No. 1 CA-SA 17-0065
                               FILED 4-13-2017


 Petition for Special Action from the Superior Court in Maricopa County
                            No. CV2016-003770
                   The Honorable Daniel Martin, Judge

           JURISDICTION ACCEPTED, RELIEF GRANTED


                                   COUNSEL

Mick Levin, PLC, Phoenix
By Sandra Lemon
Counsel for Petitioner

Appel Law Office PLLC, Fountain Hills
By Marc A. Appel
Counsel for Real Party In Interest
               ABDELRAHMAN v. HON. MARTIN/MESA
                       Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Kent E. Cattani joined.


B R O W N, Chief Judge:

¶1             Soha Abelrahman (“Mother”) seeks special action relief from
the superior court’s order requiring disclosure of her twelve-year-old son’s
(“Son”) privileged medical records. The court ordered the disclosure on
the basis that Mother “has placed her son’s medical condition in issue in
connection with her claims against Defendant,” meaning Son’s physician-
patient privilege had been impliedly waived. Because we conclude that the
court erred in finding waiver, we accept jurisdiction and grant relief.

                             BACKGROUND1

¶2             Mother and Son filed a notice of claim against Mesa Unified
School District #4 (the “District”) arising from an accident in which a
District bus rear-ended a car occupied by Mother and Son, causing injuries
to each of them. The notice, filed by counsel, indicated that Mother and Son
would accept settlements of $20,000.00 and $10,000.00, respectively. When
no pre-litigation resolution was reached, Mother sued the District for
negligence. Son was not named as a plaintiff and Mother did not seek
damages arising out of Son’s injuries. Given the amount in controversy,
the case was referred to compulsory arbitration by the superior court.

¶3             As the litigation progressed, Mother testified at a deposition
that due to the injuries she sustained in the accident, she was unable to take
care of Son, or perform tasks such as “regular activity like I was doing
before, like cooking, cleaning in my house, driving the kids to school.” She
further asserted she was unsure if she would be seeking additional


1      Our analysis here is based only on the documents provided to us in
this special action, which include the following documents filed in the
superior court: notice of claim, complaint, Mother’s interlocutory appeal of
the arbitrator’s discovery ruling, the District’s response, Mother’s reply,
and the superior court’s order denying the interlocutory appeal. No
depositions or medical records have been provided; however, several
quotations from the depositions are included in the parties’ memoranda.
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               ABDELRAHMAN v. HON. MARTIN/MESA
                       Decision of the Court

treatment for her injuries because “I’m real busy with my son. He was sick
for a [long] time and all of our care and attention was to him.”

¶4            The District then sought disclosure of Son’s medical records,
asserting that Mother placed them at issue and she had thus waived the
physician-patient privilege. The arbitrator ruled that the medical records
were discoverable, and the District subsequently requested the following
documents from Mother:

       all medical records in connection with the fall 3-4 months ago
       and hurt left leg referred to in the attached Palmer
       Chiropractic Consultation history for [Son] and all
       subsequent medical records including, but not limited to, the
       subsequent surgery referred to during [Mother’s] deposition
       that occurred in December of 2015 and any follow up
       treatment in connection with that surgery.

¶5            Mother appealed the arbitrator’s ruling, arguing the privilege
had not been waived, and even if it had, the “waiver must be narrowly
tailored to the particular medical condition at issue.” The District
responded that “plaintiff has waived her son’s doctor-patient privilege in
connection with the treatment her son received in connection with the
subject motor vehicle accident” by giving deposition testimony “regarding
how her son’s injuries and treatment contributed [sic] her injuries and
limited the treatment she received for her injuries.”

¶6              The superior court denied Mother’s interlocutory appeal,
finding that Mother had placed Son’s “medical condition in issue in
connection with her claims against [the District], and accordingly has
waived the physician-patient privilege.” Mother then petitioned for special
action relief from this court.

                              JURISDICTION

¶7             Special action review “is the proper means to seek relief
when a party believes a trial court has ordered disclosure of material
protected by a privilege.” Green v. Nygaard, 213 Ariz. 460, 462, ¶ 6 (App.
2006) (internal quotation marks omitted). “Special action jurisdiction is also
appropriate . . . when the respondent judge’s alleged abuse of discretion
concerns a pure issue of law that may be decided without further factual
inquiry.” Id. (internal quotations and citations omitted). Given these
considerations, we accept jurisdiction.



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               ABDELRAHMAN v. HON. MARTIN/MESA
                       Decision of the Court

                               DISCUSSION

¶8            The only issue we address here is whether Mother impliedly
waived Son’s physician-patient privilege by placing his medical condition
at issue as part of her claims against the District.

¶9            We review the superior court’s ruling in a discovery dispute
for an abuse of discretion, recognizing that the court may abuse its
discretion if it commits an error of law in the process of reaching a
discretionary conclusion. Green, 213 Ariz. at 462, ¶ 7. “The existence and
scope of an evidentiary privilege is a question of law we review de novo.”
Rasor v. Northwest Hosp., LLC, 239 Ariz. 546, 555, ¶ 27 (App. 2016).

¶10            The physician-patient privilege precludes a physician from
being examined about any communications made by the patient concerning
the patient’s condition or any knowledge of the condition obtained through
personal examination of the patient without the consent of the patient, or
the patient’s conservator or guardian. See Ariz. Rev. Stat. (“A.R.S.”) § 12-
2235. The privilege holder may voluntarily consent to “be examined” as to
any privileged communication, thereby effectuating an express waiver of
the protection of the privilege. See A.R.S. § 12-2236; Bain v. Superior Court
(Mills), 148 Ariz. 331, 333 (1986) (noting that “statutes relating to the
psychologist-patient privilege and the attorney-client privilege are unique
by containing express provisions specifying the conduct which will be
deemed a waiver of the privilege”). The District has made no assertion that
Mother expressly waived Son’s physician-patient privilege.

¶11             Arizona also recognizes, however, the concept of implied
waiver of privilege. See Bain, 148 Ariz. at 334 (“[W]here a privilege holder
. . . places a particular medical condition at issue by means of a claim or
affirmative defense, . . . then the privilege will be deemed waived with
respect to that particular medical condition.”); see also 8 WIGMORE ON
EVIDENCE 855, § 2388 (McNaughton Rev. 1961) (“A waiver is to be
predicated . . . when the conduct (though not evincing that intention) places
the claimant in such a position, with reference to the evidence, that it would
be unfair and inconsistent to permit the retention of the privilege. It is not
to be both a sword and a shield.”). The scope of implied waiver of the
physician-patient privilege extends only to privileged communications
concerning the specific condition that has been voluntarily placed at issue
by the privilege holder. See Bain, 148 Ariz. at 334.

¶12          The patient is the holder of the privilege and, as such, is the
only person who can waive it; however, when the patient is a minor child,

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               ABDELRAHMAN v. HON. MARTIN/MESA
                       Decision of the Court

in some circumstances the child’s parents, as “legal guardians,” may be
found to have waived the child’s privilege. See Duquette v. Superior Court
(Lamberty), 161 Ariz. 269, 272 n. 5 (App. 1989) (finding that parents who
filed a medical malpractice case waived their minor son’s physician-patient
privilege, as his “legal guardians,” by including him as a plaintiff in the
lawsuit and thereby placing his medical condition at issue). We assume,
without deciding, that the parents of a child, without being formally
appointed as the “guardian[s] of the patient,” may expressly or impliedly
waive the privilege on behalf of the child, but presumably may only do so
if such consent is in the interests of the child (as opposed to the interests of
the parents).

¶13           Mother argues the court-ordered disclosure is improper
because she did not place Son’s medical condition at issue in a way that
results in a waiver. She contends that a “nonparty cannot be forced to
waive their privilege for another party’s lawsuit.”

¶14            The District relies on Duquette, in which this court concluded
that a minor patient’s parents impliedly waived the physician-patient
privilege by placing their minor son’s medical condition at issue through
initiation of a medical malpractice suit. 161 Ariz. at 272. In that case,
however, the minor child was a party to the litigation. Id. at 270. In finding
implied waiver, we reasoned that the parents (1) placed their son’s medical
condition at issue by filing suit, (2) claimed their son’s medical expenses as
damages in their claims, and (3) failed to object to the testimony of their
son’s treating physicians when that testimony was offered at a medical
liability review panel hearing. Id. at 272. Based on those factors, none of
which are present here, Duquette found an implied waiver of the physician-
patient privilege held by the minor son. Id.

¶15            In this case, Mother is the only named plaintiff. Son is not a
party to this litigation, and Mother has not sought to recover Son’s medical
expenses as part of her claim for damages. Mother timely objected, and
continues to object, to disclosure of Son’s medical information. And no
evidence provided has effectuated an implied waiver.

¶16           The District argues nonetheless that Mother waived the
privilege when she “plac[ed] her son’s medical condition in issue in
connection with [her] claims against [the District] by . . . claiming that her
injuries were aggravated by and that she did not get treatment because of
an injury to her son that her son and his medical records state were caused
by the subject motor vehicle accident.” But privileged records from a third
party (including a minor child) are not discoverable under those

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               ABDELRAHMAN v. HON. MARTIN/MESA
                       Decision of the Court

circumstances. The District has not cited, nor has our research revealed,
any authority suggesting that a parent may unilaterally waive a non-party
child’s privilege as part of the parent’s personal injury claims that do not
allege personal injury to the child or seek recovery for the child’s injuries.
Thus, we hold that Mother has not waived Son’s physician-patient
privilege.

                              CONCLUSION

¶17            Because we conclude that the superior court erred in finding
that Mother impliedly waived Son’s physician-patient privilege regarding
his medical records, we vacate the court’s order compelling disclosure of
Son’s medical records and remand for further proceedings consistent with
this decision. In our discretion, we deny both parties’ request for attorneys’
fees.




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




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