                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NO. 2-08-233-CV

IN RE KRISTA DANCER                                                  RELATOR

PENNINGTON

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                              ORIGINAL PROCEEDING

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                          MEMORANDUM OPINION 1

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      This is an original proceeding arising from a discovery dispute in a

personal injury case involving a car accident. Relator Krista Dancer Pennington

seeks relief from the trial court’s order requiring her to (1) sign a blanket

medical release that encompasses any records relating to her mental health

history and (2) supplement discovery to provide real parties in interest, Bobby

McBride and Zachry Construction Corp., with the names of her mental health




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          … See T EX. R. A PP. P. 47.4.
care providers since November 1996. We conditionally grant the writ, as set

forth below.

                                 Background

      Pennington and McBride were involved in a traffic accident in November

2006. According to Pennington, McBride’s vehicle struck Pennington’s from

behind just as she had stopped at a red light. Pennington sued McBride and his

employer, Zachry, in 2008, requesting property and personal injury damages,

including damages for past and future emotional distress and mental anguish.

During discovery, Pennington refused to sign a blanket medical release and

refused to provide the names of her mental health care providers, asserting that

this information is privileged. But she did provide McBride and Zachry with the

names of all of her other medical providers during the preceding ten years. She

also provided medical records pertaining to the personal injuries she was

claiming she sustained as a result of the accident. Those records indicate that

Pennington was taking antidepressant and antianxiety medication at the time

of the accident.

      McBride and Zachry filed a motion to compel asking the trial court to

order Pennington to, among other things, sign the blanket release and provide

the names of her mental health care providers. They also filed a First Amended

Answer, in which they alleged that “[a]ll injuries, damages and/or liabilities

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complained of by [Pennington] herein are the result, in whole or in part, of pre-

existing mental, emotional, and/or physical conditions and disabilities, and are

not the result of any acts or omissions on the part of” McBride and Zachry.

Pennington responded to the motion, claiming that she was not required to sign

the medical release because she had tendered all the medical records related to

her injuries in lieu of signing a release under rule 194.2(j) of the rules of civil

procedure. T EX. R. C IV. P. 194.2(j) (providing that in suit alleging physical or

mental injury and damages for same, opponent may request “all medical records

and bills that are reasonably related to the injuries or damages asserted or, in

lieu thereof, an authorization permitting the disclosure of such medical records

and bills” (emphasis added)); In re Shipmon, 68 S.W.3d 815, 820 (Tex.

App.—Amarillo 2001, orig. proceeding [mand. denied]) (interpreting rule

194.2(j) as authorizing party to obtain discovery of medical records through

request for disclosure or by obtaining records through obtaining opposing

party’s authorization for disclosure).

      The trial court held a hearing on McBride and Zachry’s motion on April

23, 2008. On May 9, 2008, McBride and Zachry filed a Second Amended

Answer, in which they alleged the following:

      All injuries, damages and/or liabilities complained of by [Pennington]
      herein are the result, in whole or in part, of pre-existing mental,
      emotional and/or physical conditions and disabilities, and are not

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      the result of any acts or omissions on the part of [McBride and
      Zachry]. Such conditions and disabilities specifically include but are
      in [no] way limited to [Pennington’s] . . . depression, [and]
      anxiety . . . and/or resulting from each and every one of the
      foregoing. Such conditions and disabilities also include but again
      are in no way limited to any and all . . . emotional and/or mental
      consequences of [Pennington’s] 1998 low back injury,
      [Pennington’s] 1999 motor vehicle collision, [Pennington’s]
      numerous surgical treatments, and/or [Pennington’s] marital,
      criminal and employment history over the ten years preceding the
      incident in question, as well as any and all conditions or disabilities
      treated or in any way caused by [Pennington’s] use of Lithium,
      Xanax, Wellbutrin, Trazadone . . . .

The trial court signed an order on May 27, 2008, requiring Pennington to (1)

respond to Request for Production Number 22, which asked her to sign “the

attached Authorization for Release of Medical Records,” specifically including

mental health records, (2) “provide[,] execute[,] and return to . . . McBride a

standard HIPAA form for release of any and all medical and/or psychological

records including all notes, reports, records, summaries, films, histories and

physicals for purposes of treatment and/or diagnosis, without any limitation as

to scope, for the period from November 20, 1996 to present,” and (3) amend

her response to Interrogatory Number 6, which asked for the names and

addresses of all her health care providers since November 1996 and to which

she had objected as to mental health care providers.

      Pennington subsequently filed this mandamus proceeding seeking relief

from the trial court’s order to the extent it requires the production of her mental

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health care records. She also filed a motion asking for a temporary stay of the

trial court’s order pending this court’s review of her mandamus petition, which

we granted on June 6, 2008.

                                Applicable Law

      Pennington contends that her mental health care records are privileged

from production under rules of evidence 509 and 510. Generally, the diagnosis

of a patient by a physician and the communications between a patient and

physician are privileged. See T EX. R. E VID. 509; Garza v. Garza, 217 S.W.3d

538, 554 (Tex. App.—San Antonio 2006, no pet.). Likewise, with regard to

a person’s mental health, the diagnosis of the patient and communications

between the patient and a mental health professional are privileged. T EX. R.

E VID. 510; Garza, 217 S.W.3d at 554.       However, these privileges are not

absolute. See T EX . R. E VID . 509(e), 510(d); Garza, 217 S.W.3d at 554. An

exception to both privileges applies “to a communication or record relevant to

an issue of the physical, mental or emotional condition of a patient in any

proceeding in which any party relies upon the condition as a part of the party’s

claim or defense.” T EX. R. E VID . 509(e)(4), 510(d)(5); R.K. v. Ramirez, 887

S.W.2d 836, 843 (Tex. 1994).

      As a general rule, a mental condition will be a ‘part’ of a claim or
      defense if the pleadings indicate that the jury must make a factual
      determination concerning the condition itself. In other words,

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      information communicated to a doctor or psychotherapist may be
      relevant to the merits of an action, but in order to fall within the
      litigation exception to the privilege, the condition itself must be of
      legal consequence to a party’s claim or defense.

Ramirez, 887 S.W.2d at 843; In re Toyota Motor Corp., 191 S.W.3d 498, 502

(Tex. App.—Waco 2006, orig. proceeding [mand. denied]). Medical records

should not be subject to discovery if the patient’s condition is merely an

evidentiary or intermediate issue of fact, rather than an ultimate issue of a claim

or defense, or if the condition is merely tangential to a claim or defense rather

than central to it. Ramirez, 887 S.W.2d at 842; In re Nance, 143 S.W.3d 506,

511–12 (Tex. App.—Austin 2004, orig. proceeding).            A claim for mental

anguish or emotional distress will not, standing alone, make a plaintiff’s mental

or emotional condition a part of the plaintiff’s claim.           See Coates v.

Whittington, 758 S.W.2d 749, 751–52 (Tex. 1988) (orig. proceeding); In re

Nance, 143 S.W.3d at 512. “[O]nly if the patient’s condition itself is a fact

that carries legal significance and only to the extent necessary to satisfy the

discovery needs of the requesting party” will discovery be allowed. Ramirez,

887 S.W.2d at 843.

      The trial court should determine whether a condition is a part of a claim

or defense on the face of the pleadings, without reference to the evidence that

is allegedly privileged. Id. at 843 n.7; In re Doe, 22 S.W.3d 601, 609 (Tex.


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App.—Austin 2000, orig. proceeding). Once the trial court concludes that a

party’s mental condition is a part of a claim or defense, and thus subject to the

exception to privilege, upon request, it must conduct an in camera inspection

of the documents to be produced to ensure that only information fitting the

narrow exception to the privilege is produced. Ramirez, 887 S.W.2d at 843;

In re Nance, 143 S.W.3d at 510.

      Generally, privileged matters are not discoverable.      In re Fort Worth

Children’s Hosp., 100 S.W.3d 582, 587 (Tex. App.—Fort Worth 2003, orig.

proceeding [mand. denied]); In re Anderson, 973 S.W.2d 410, 411 (Tex.

App.—Eastland 1998, orig. proceeding). A discovery order is improper if it

compromises a person’s right to possible claims of privilege or mandates the

disclosure of privileged information that exceeds the scope of discovery. In re

Fort Worth Children’s Hosp., 100 S.W.3d at 587; In re Dolezal, 970 S.W.2d

650, 651 (Tex. App.—Corpus Christi 1998, orig. proceeding). Mandamus is

the appropriate remedy when the trial court has erroneously granted discovery

of privileged documents. In re Fort Worth Children’s Hosp., 100 S.W.3d at

587; In re Anderson, 973 S.W.2d at 411.       Remedy by appeal in that case is

ineffective because, once revealed, the documents cannot be protected. In re

Fort Worth Children’s Hosp., 100 S.W.3d at 587; In re Dolezal, 970 S.W.2d at

651. The party asserting a privilege has the burden to prove its application.

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Jordan v. Court of Appeals for Fourth Supreme Dist., 701 S.W.2d 644,

648–49 (Tex. 1985) (orig. proceeding); In re Hinterlong, 109 S.W.3d 611, 621

(Tex. App.—Fort Worth 2003, orig. proceeding [mand. denied]).

                                    Analysis

      Here, Pennington informed the trial court in her response to McBride and

Zachry’s motion to compel of the specific evidentiary rules upon which she was

relying for her claim of privilege. Initially, McBride and Zachry contended that

the records were relevant to Pennington’s claims “by the very nature of her

claims for medical costs, physical pain and suffering, mental anguish and

emotional distress.”   However, after filing their First and Second Amended

Answers, McBride and Zachry relied upon their allegation of “pre-existing

injuries and conditions” to support their claim that the records are not

privileged.

      The fact that a plaintiff has had past mental problems is distinct from the

mental anguish associated with a personal injury or loss; a tortfeasor takes a

plaintiff as he finds her.   In re Nance, 143 S.W.3d at 512; In re Doe, 22

S.W.3d at 606. Defensive claims that a plaintiff’s damages and injuries were

caused by pre-existing conditions do not involve the resolution of ultimate

issues of fact that have legal significance standing alone. In re Nance, 143

S.W.3d at 512. Instead, these types of defensive assertions are in the nature

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of inferential rebuttal claims and, thus, are not sufficient to put a plaintiff’s

mental condition at issue so as to make medical records about that condition

discoverable. Id. at 512–13; see T EX. R. C IV. P. 277; see also In re Doe, 22

S.W.3d at 610 (rejecting defense’s contention that without rape victim’s

mental health records, jury would be left with impression that victim was in

perfect emotional health before incident and would seek to blame defendant for

all of her emotional troubles). Accordingly, we conclude and hold that—at this

stage of discovery and based on the state of the pleadings at this time 2 —the

trial court abused its discretion by ordering Pennington to sign an authorization

for release of her mental health care records and the names and addresses of

her mental health care providers. See Ramirez, 887 S.W.2d at 842–43; In re

Nance, 143 S.W.3d at 512.

      McBride and Zachry point out that Pennington failed to request an in

camera inspection of the documents to which she objected producing.

However, we have already determined from the face of the pleadings that the

exception does not apply; thus, an in camera review would have been

unnecessary.    Additionally, there is no indication that Pennington was in


      2
       … The facts alleged in the current pleadings do not rise to the level of
“legal significance” required by Ramirez. See Doe, 22 S.W.3d at 610 (“As
discovery continues in the case, an in camera inspection may be appropriate to
determine whether some mental health records should be released.”).

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possession of these documents; the trial court ordered her to sign an

authorization allowing McBride and Zachry to obtain these documents. And the

information she was required to produce directly—the names and addresses of

her mental health care providers—would not have assisted the trial court in

determining whether all or only part of the records are within the exception to

the privilege.

                                  Conclusion

      Because we have determined that the trial court abused its discretion by

ordering Pennington to sign an authorization for release of her mental health

care records and the names and addresses of her mental health care providers,

we conditionally grant a writ of mandamus ordering the trial court to vacate the

parts of its May 27, 2008 order (1) compelling relator to amend her response's

to McBride's First Request for Production No. 22 and First Interrogatory No. 6

with information regarding her mental health care providers and (2) compelling

relator to "provide[,] execute[,] and return" to McBride and Zachry a standard

HIPAA form for release of her medical and psychological records since

November 20, 1996 to the extent that such a standard form release would

allow McBride and Zachry to obtain any records relating to relator's mental

health during that time. The temporary stay issued by this court on June 6,

2008 will remain in effect only as to the parts of the trial court's May 27, 2008

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order compelling relator to produce information regarding, or sign a release as

to, her mental health care records and providers until the trial court complies

with this court’s ruling, at which time it will automatically terminate. The stay

is lifted as to the remainder of the order.




                                              TERRIE LIVINGSTON
                                              JUSTICE


PANEL B:    LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DELIVERED: July 16, 2008




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