           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                         IN AND FOR KENT COUNTY


JOHN DOE,                                 )
                                          ) C.A. No. K13C-03-041 JTV
                  Plaintiff,              )
                                          )
      v.                                  )
                                          )
BRIANA SLATER, MARK C. SLATER,            )
and APRIL P. SLATER,                      )
                                          )
                  Defendants.             )



                          Submitted: October 8, 2014
                          Decided: November 12, 2014



Robert C. Collins, Esq., Schwartz & Schwartz, Dover, Delaware. Attorney for
Plaintiff.

Matthew E. O’Bryne, Esq., Casarino, Christman, Shalk, Ransom & Doss,
Wilmington, Delaware. Attorney for Defendants.



                      Upon Consideration of Defendant’s
                       Motions For Reconsideration of
                           Commissioner’s Order
                            GRANTED In Part
                             DENIED In Part
John Doe v. Slater, et al.
C.A. No. K13C-03-041
November 12, 2104


VAUGHN, President Judge

                                         ORDER
      Upon consideration of the defendants’ Motion for Reconsideration of
Commissioner’s Order, the plaintiff’s opposition, and the record of the case, it
appears that:
      1.        The defendants, Briana Slater, Mark Slater, and April Slater, have filed
a motion to reconsider a Commissioner’s decision which denied the defendants’
motion to compel the plaintiff to provide discovery concerning certain mental health
treatment experienced by the plaintiff.
      2.        On March 29, 2013, the plaintiff filed a complaint against the defendants
alleging injuries resulting from a car accident that occurred on March 31, 2011. The
complaint contends that the accident occurred when Briana Slater, driving
southbound on Peachtree Run, failed to stop at a stop sign at Irish Hill Road and
drove her car into the plaintiff’s path of travel, causing the plaintiff to hit Briana
Slater’s driver side. The plaintiff alleges that Briana Slater is the sole cause of the
accident and claims damages which include “conscious pain and suffering,” “loss of
enjoyment,” and “physical injury.” The defendants dispute liability and the nature
and extend of the plaintiff’s damages.
      3.        It appears that the plaintiff was admitted to Meadow Wood Behavioral
HealthSystem, a psychiatric facility, on or about March 22, 2011, nine days prior to
the accident. He was released between that date and the date of the accident. It
further appears that the plaintiff was then treated at Meadow Wood at some point

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John Doe v. Slater, et al.
C.A. No. K13C-03-041
November 12, 2104

after the accident, although the date or dates do not appear to be in the record.
       4.     On September 20, 2013, the defendants filed a motion to compel the
plaintiff to produce medical records from Meadow Wood. The defendants contended
that the plaintiff’s mental state at the time of and following the accident are relevant
to determining whether the plaintiff’s conduct contributed to the accident and the
nature and extent of his injuries. The plaintiff opposed the motion, contending that
Delaware Rule of Evidence 503(b),1 the mental health care provider-patient privilege,
was not waived and that any mental health records were absolutely privileged and not
discoverable.
       5.     The motion to compel was heard by a Superior Court Commissioner.
The Commissioner denied the motion.                  The defendants filed a motion for
reconsideration of the Commissioner’s order pursuant to Superior Court Rule 132.
       6.     Superior Court Rule 132(a)(3)(iv) provides that a judge may reconsider
an order issued by a Commissioner on non case-dispositive matters only where the
movant demonstrates that the Commissioner’s order is based upon findings of fact
that are clearly erroneous, or is contrary to law, or is an abuse of discretion.
       7.     The defendants contend that the Commissioner’s order is contrary to law
because filing a personal injury action waives the plaintiff’s privilege as to all

       1
          Delaware Rules of Evidence 503(b) describes the mental health care provider- patient
privilege in pertinent part:

       A patient has a privilege to refuse to disclose and to prevent any other person from
       disclosing confidential communications made for the purpose of diagnosis or
       treatment of the patient’s physical, mental or emotional condition . . . among the
       patient, the patient’s mental health provider, physician or psychotherapist . . . .

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John Doe v. Slater, et al.
C.A. No. K13C-03-041
November 12, 2104

relevant medical information; that the plaintiff has relied on facts regarding his
mental health in order to establish his claims and defenses, and in doing so has
waived his mental health privilege under Rule 503(d)(3); that the plaintiff has
expressly claimed that his mental health treatment and history had no role in causing
the accident, which is a waiver of the privilege; that the plaintiff waived his Rule 503
privilege when he signed and delivered a medical records waiver, which included
psychiatric records, to his lawyer; and that public policy requires that the plaintiff
cannot waive his Rule 503 privilege for his own benefit and then seek to use the same
privilege to deny the defendants from discovering the same information.2
       8.      The plaintiff contends that he took deliberate steps to maintain his Rule
503 privilege in order to protect his medical information; that he purposely decided
not to seek emotional or psychological damages in order to preserve his
provider/patient privilege as it relates to his mental health treatment; that his mental
state is not at issue and his claim is specifically limited to physical injuries; that the
medical authorization given to his attorney does not have any effect on his waiver of
Rule 503 because his attorney never requested or viewed mental health records; and
that failing to maintain the Rule 503 privilege would have broadly chilling effects on


       2
           In the course of discussing their contentions, the defendants discuss two prior accidents
the plaintiff had been involved in, one less than two months before the one in this case. They
describe certain circumstances relating to those accidents, including pain medications which the
plaintiff took after the second accident, and pain medications which the plaintiff took after the
accident in this case. They further state that they submitted an interrogatory to the plaintiff
asking him to identify all hospitals, mental health facilities or medical institutions for which he
was treated for mental or emotional difficulties, or drug or alcohol abuse, for 20 years prior to the
accident.

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John Doe v. Slater, et al.
C.A. No. K13C-03-041
November 12, 2104

patients’ relationships with their therapists.
      9.     Rule 503(d)(3) reads as follows:
             There is no privilege under this rule for a communication
             relevant to an issue of the physical, mental or emotional
             condition of the patient in any proceeding in which the
             patient relies upon the condition as an element of the
             patient’s claim or defense . . .

The issue is whether the plaintiff’s mental health treatment records are relevant to any
physical, mental or emotional condition upon which the plaintiff relies.
      10.    Case preparation which has taken place after the Commissioner’s
decision    has produced medical evidence which was not available to the
Commissioner. According to the record of the case, part of the plaintiff’s alleged
injuries from the accident were injuries to his neck and back. From a report prepared
by Dr. Andrew Robinson, it appears the defendant was treated for lower back pain by
a Dr. Ameer, who expressed the opinion that the plaintiff suffered from incurable and
painful conditions of the lower back, which were treated with reasonable amounts of
opiates. Dr. Robinson disagreed with these statements by Dr. Ameer.
      11.    Dr. Damian Andrisani, who was retained by the defense to examine the
plaintiff, expressed the following opinion:
             To further complicate matters, he [the plaintiff] was
             hospitalized on 3/22/2011 for severe depression and
             suicidal ideations. These issues may be significant
             contributing factors to his needs for pain medications
             through February 2012, provided by Dr. Ameer.



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John Doe v. Slater, et al.
C.A. No. K13C-03-041
November 12, 2104

      12.    The plaintiff objects to my considering this information, which was
submitted after briefing on the motion was completed. However, I think it is
reasonable to take into account all relevant information which either party submits,
and I am satisfied that the plaintiff has had a fair opportunity to be heard on all
information which has been submitted.
      13.    Based upon the above-described medical evidence, I conclude that the
records of the plaintiff’s March 22, 2011 hospitalization at Meadow Wood are
relevant to a full evaluation of the plaintiff’s alleged back injury and the treatment of
that injury. I therefore conclude, based upon the current state of the record, that the
Commissioner’s denial of the motion to compel was contrary to law. The plaintiff
shall provide those records to the defendants within 60 days.
      14.    I am not persuaded, on this record, that any mental health records prior
to the March 22, 2011 hospitalization are relevant, and in my opinion the request for
all records for 20 years preceding the accident is extremely over broad. However, the
plaintiff shall provide the defendants with the date and location of any mental health
treatment which he received in the six-month period preceding the accident. With
regard to mental health treatment after the accident, the plaintiff shall provide the
defendants with the dates of his treatment at Meadow Wood Hospital referred to in
his answer to interrogatory 14. This information shall be provided within 30 days.
If, after counsel for the defendants has had an opportunity to examine the records
from the March 22, 2011 hospitalization and is made aware of the date and location
of other treatment as provided herein, counsel believes that the records of such


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John Doe v. Slater, et al.
C.A. No. K13C-03-041
November 12, 2104

treatment are relevant, he can file a new motion seeking such records.3
       15. Therefore, the motion for reconsideration is granted in part and denied
in part.
       IT IS SO ORDERED.

                                          /s/ James T. Vaughn, Jr.
                                              President Judge

cc:    Prothonotary
       Order Distribution
       File




       3
          I am not persuaded that the signing of a standard medical release form at the request of
his attorney which was not utilized by the attorney to obtain any mental health records waives the
assertion of the privilege. I find it unnecessary to address the plaintiff’s other contentions.

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