                                                                            FILED
                                                                        Dec 09 2016, 8:59 am
      OPINION ON REHEARING
                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      David J. Karnes                                           Gregory K. Blanford
      Michael G. Foley                                          The Blanford Law Office
      Dennis, Wenger & Abrell P.C.                              South Bend, Indiana
      Muncie, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Meridian Health Services                                  December 9, 2016
      Corporation,                                              Court of Appeals Case No.
      Appellant-Intervenor,                                     71A04-1511-DR-2005
                                                                Appeal from the St. Joseph
              v.                                                Superior Court
                                                                The Honorable Jenny Pitts Manier,
      Thomas Martin Bell,                                       Judge
      Appellee-Respondent.                                      Trial Court Cause No.
                                                                71D05-1002-DR-94



      Robb, Judge.


[1]   In Meridian Health Servs. Corp. v. Bell, 61 N.E.3d 348 (Ind. Ct. App. 2016), we

      affirmed the trial court’s imposition of sanctions on a mental health provider for

      failing to appear at a deposition and refusing to release a child’s mental health

      records to her non-custodial parent. Meridian Health Services Corporation

      (“Meridian”) seeks rehearing of our decision. We grant rehearing to address


      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1511-DR-2005 | December 9, 2016   Page 1 of 6
      one of the grounds raised by Meridian in its petition for rehearing, but reaffirm

      our original decision in all respects.


[2]   To reiterate the facts as briefly as possible, when Thomas Bell (“Father”) and

      Angela Bell (“Mother”) were divorced in 2011, they agreed to share joint legal

      custody of their only child, with Mother having primary physical custody. At

      some point prior to 2014, Mother began taking the child to Meridian for

      therapy. In March 2015, Father contacted Meridian requesting his child’s

      therapy records. Meridian informed Father it would first need a signed medical

      release, but prior to receiving the release, sought and received from the child’s

      physician a letter stating that it was medically necessary that the records not be

      released. Based on this letter, even after receiving in May the signed medical

      release form it had requested from Father, Meridian refused to release the

      therapy records without a court order issued pursuant to Indiana Code chapter

      16-39-3. Around this same time, a hearing was set regarding a parenting time

      dispute between the parents. In preparation for that July hearing, Father served

      a notice of deposition on the child’s therapist and a subpoena duces tecum to

      produce her complete file. Three days before the scheduled deposition,

      Meridian filed a motion to quash and motion for protective order, asserting it

      was prohibited by state and federal law from disclosing the requested

      information without a court order. The trial court did not rule on the motions

      before the July deposition, and the therapist did not appear. Father then filed a

      motion for rule to show cause against the therapist and the trial court set a

      hearing on all pending motions. The child’s physician and therapist both


      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1511-DR-2005 | December 9, 2016   Page 2 of 6
      testified at the September hearing, following which the trial court denied

      Meridian’s motions, finding Meridian was not required or entitled to withhold

      the records from Father. In addition, the trial court noted that even if the

      therapist determined she could not testify at a subsequent deposition, she

      should appear, state her objection, and turn over the subpoenaed records. The

      trial court did not rule on Father’s motion for rule to show cause.


[3]   Thereafter, Meridian filed a motion to correct error and Father filed a petition

      for attorney’s fees. Father also served a second deposition notice and subpoena

      duces tecum on the therapist for an October 2 deposition. Meridian then filed a

      motion to stay the proceedings until the trial court ruled on its motion to correct

      error and requested an emergency hearing because the second deposition was

      imminent. The trial court was unable to hold a hearing before the second

      deposition and the therapist again did not appear. Rather, on the date

      scheduled for the deposition, Meridian tendered the therapy records to the trial

      court and moved to seal the records until resolution of all pending motions and

      any potential appeals. The trial court held another hearing about the records,

      after which it stated it would make the records available for in camera review by

      the parties’ attorneys. After Meridian unsuccessfully sought to certify the trial

      court’s order denying its motion to quash and motion for protective order, the

      trial court held a hearing to address all remaining motions, including Father’s

      motions for rule to show cause and his petition for attorney fees. The trial court

      issued an order dated October 30, 2015, concluding Meridian is “in contempt of




      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1511-DR-2005 | December 9, 2016   Page 3 of 6
      Court for failure to comply with the subpoena duces tecum and failure to

      appear at the deposition.” Corrected Appellant’s Appendix at 19.


[4]   Focusing on that sentence of the trial court’s order, Meridian contends our

      decision seems to affirm the sanction based upon a “misunderstanding or

      misreading of the trial court’s order.” Corrected Appellant’s Petition for

      Rehearing at 11. In our opinion, we stated,


              the trial court ordered sanctions only after it held a hearing at
              which Meridian offered evidence in support of withholding the
              records from Father . . ., it ruled against Meridian’s motion to
              quash and motion for protective order, and yet Meridian
              continued to balk at releasing the records. Meridian filed a
              barrage of motions and defied the trial court's order that K.B.’s
              therapist appear at any scheduled deposition, make a record of
              her inability to testify, and turn over the subpoenaed records,
              instead tendering the records directly to the trial court under seal
              on the date of a scheduled deposition.


      61 N.E.3d at 360. Meridian asserts that even though the timing of the trial

      court’s order was “after Meridian exhausted all known avenues to protect their

      patient’s records short of this appeal,” the sanction was “based solely upon

      Meridian’s actions . . . to refrain from releasing its client’s protected health

      information pursuant to [Father’s] initial subpoena duces tecum and notice of

      deposition.” Petition for Reh’g at 12.


[5]   We acknowledge the quoted sentence of the trial court’s order refers specifically

      to the failure to comply with “the” subpoena duces tecum and failure to appear

      at “the” deposition. We also note that Father served two subpoenas and notices

      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1511-DR-2005 | December 9, 2016   Page 4 of 6
      of deposition on the therapist, both of which she ignored and the second of

      which was served after the trial court issued an order stating the therapist should

      appear at any further deposition and make a record of her objections to

      testifying. That notwithstanding, we also note the trial court’s order elaborates

      on the history of the case beyond simply the therapist’s failure to comply with

      the July notice of deposition and subpoena duces tecum. Father filed a motion

      for rule to show cause in July (after the missed deposition) and a petition for

      attorney’s fees in September (after the hearing on whether Meridian had to turn

      over the records). Yet, the trial court did not enter the sanctions order until the

      end of October. This was six months after Father first requested the records

      and several weeks after the trial court ruled he was entitled to them. It was also

      after Meridian made multiple attempts to call the trial court’s ruling into

      question but failed to come forward with any additional evidence beyond that

      presented originally justifying its continued defiance of the trial court’s order.

      In other words, although the trial court’s order was looking back to the initial

      failure to appear at a deposition and produce the records, it did so because of

      Meridian’s conduct in failing to produce anything over the long course of

      litigating this issue that would have justified its failure to show up and comply

      with the subpoena in the first place.


[6]   It is clear from the entire record of the proceedings that the trial court’s decision

      to impose sanctions against Meridian only after the records had finally been

      released to the parties was based on the sum total of Meridian’s actions

      throughout this litigation and not just on the original failure to comply with a


      Court of Appeals of Indiana | Opinion on Rehearing 71A04-1511-DR-2005 | December 9, 2016   Page 5 of 6
subpoena and appear for a deposition. We did not misread or misunderstand

the substance of the trial court’s order, and we therefore reaffirm our original

decision that the trial court did not abuse its discretion in ordering Meridian pay

Father’s attorney fees incurred in obtaining his child’s therapy records.


Najam, J., and Crone, J., concur.




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