       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

ERIC D. VOLKERT,                               )     No. 77308-9-I

              Respondent,                      )     DIVISION ONE

              v.                               )     PUBLISHED OPINION

FAIRBANK CONSTRUCTION CO., INC.,               )
a Washington corporation,                      )
                                               )
              Petitioner,

              and

ELIZABETH ZIEGLER, PH.D.,                      )
            Non-Party Petitioner.              )
___________________________________                  FILED: April 8, 2019
        HAZELRIGG-HERNANDEZ, J.    —   Eric D. Volkert subpoenaed all of Dr. Elizabeth

 Ziegler’s past medical reports prepared for litigation in an attempt to show her bias

 against treating doctors. The trial court ordered Ziegler to produce the records.

 Fairbank Construction Co. and Ziegler seek reversal, arguing that Washington’s

 Uniform Health Care Information Act (UHCIA) prohibits disclosure of the records

 absent authorization from the prior examinees or notice and an opportunity to

 object. Because the trial court applied the wrong standard and the reports contain

 confidential health care information, we reverse.
No. 77308-9-1/2

                                       FACTS

       On September 5, 2012, Eric Volkert was injured while working on a

construction site at which Fairbank Construction Company, Inc. was the general

contractor. Volkert struck his head on a piece of lumber protruding from the back

of a truck owned by Fairbank. On September 26, 2013, Volkert filed a suit for

negligence against Fairbank and claimed that he had suffered severe and

permanent injuries from the incident, including traumatic brain injury (TBI) and

neurological injuries. Fairbank asserted contributory negligence of the plaintiff as

an affirmative defense.

       Volkert’s treating doctors testified that he had sustained a TBI as a result of

the accident. Fairbank hired neuropsychologist Elizabeth A. Ziegler, Ph.D. to give

her expert opinion on Volkert’s injuries.       Ziegler holds a Ph.D. in clinical

psychology,   completed an       accredited   postdoctoral fellowship     in   clinical

neuropsychology, and is a practicing, licensed psychologist in Washington. Ziegler

reviewed Volkert’s medical records, conducted a forensic interview with Volkert,

and performed her own neuropsychological evaluation of Volkert. Her evaluation

included administration of sixteen individual tests as well as a “{b]attery of free

standing and embedded performance validity tests.”         She prepared a lengthy

report in which she opined that there was no objective evidence of concussion or

mild TBI stemming from the accident. In the report, Ziegler noted that a brain injury

is diagnosed based on acute characteristics at the time of the event and stated

that she could not find support for such a diagnosis in Volkert’s medical records

from the day of the accident. She also found that inconsistencies in his responses



                                        -2-
No. 77308-9-1/3

during the neuropsychological evaluation indicated that malingering may have

been a factor.

       The case went to trial in July 2016 and the jury found Volkert and Fairbank

equally negligent. The jury awarded Volkert past and future economic damages

of $334,000 but did not award any non-economic damages for pain and suffering.

Upon Volkert’s motion for a new trial on damages, the trial court found that the

jury’s award of $0 for non-economic damages was not supported by substantial

evidence and ordered a new trial on damages only.

       Volkert deposed Ziegler before the second trial. At the deposition, Ziegler

estimated that she works with the defense in personal injury cases about 99% of

the time and has prepared forensic reports for about 225 to 250 cases. She keeps

copies of most of the forensic reports that she writes on a laptop. Although she

was not able to estimate how often she disagrees with plaintiffs’ treating healthcare

providers, she asserted that she was “very, very likely” to disagree with treatment

plans in cases of mild TBI “because they’re not evidence-based.” Ziegler agreed

that, based on an empirical review analyzing reports prepared during litigation from

neuropsychologists throughout the country, malingering was identified as a factor

in 30-50% of cases. However, she did not know the rate at which she found

malingering to be a factor in her examinations. She stated that she does not track

this data and would have to spend “weeks to months going through each report”

and conducting statistical analysis to produce that information.

      Volkert’s counsel questioned Ziegler regarding her awareness of anything

that limited her ability to use the reports that she had created and the degree of



                                        -3-
No. 77308-9-1/4

confidentiality that was afforded to the information. Ziegler responded that she did

not know of any limitations on her use of her reports or ability to testify to their

contents apart from motions in limine. She testified that she informs examinees

during the consent process that the examination and whatever is in their records

is “an open book.” She admitted that she testifies in open court regarding the

content of her reports and does not attempt to hide the identity of the examinee

because “the case is such-and-such versus such-and-such. It’s very obvious who

I’m talking about when I’m on the stand, so there’s no reason to take protective

measures.” Counsel did not ask whether Ziegler had testified to or otherwise

disclosed the contents of any of her reports outside of the exam inee’s own case.

When asked about the possibility of Volkert’s counsel looking through her past

reports to identify patterns, Ziegler expressed concern that disclosing the reports

would infringe on the past examinees’ privacy and stated that she did not

understand the consent to disclosure to apply outside examinees’ own cases.

      The same day, Volkert subpoenaed from Ziegler all medical legal reports

and reviews that she had authored concerning any Personal Injury Protection (PIP)

claims, Underinsured Motorist (UIM) claims, or as otherwise ordered under CR 35.

Ziegler was directed to produce the reports within eight days. Fairbank lodged

seven objections to the subpoena, arguing that the subpoena imposed an undue

burden and expense on Ziegler, the materials requested were beyond the scope

of discovery permitted, the subpoena did not provide sufficient time for production

of the requested material, the subpoena requested the disclosure of privileged,

confidential, and protected information, the subpoena requested materials and



                                       -4-
No. 77308-9-1/5

expert opinions which were unrelated to the case in question, the subpoena was

so broad and overreaching that a detailed description of the exact nature of the

privileges involved was not possible in the time allotted to respond, and Ziegler

had never received permission through the consent process from the subjects of

the reports requested to disseminate their information to other attorneys outside of

the case in connection with which they were interviewed.

        In response to Fairbanks objections, Volkert proposed a stipulation that

would require Ziegler to produce any reports that were not subject to protective

orders preventing disclosure.     However, the stipulation would ensure that the

subjects of the reports would only be referenced by their initial at trial and that no

“highly sensitive information contained in the report such as rape, incest, abortions,

sexual abuse, HIV status, or similar matters” would be referenced by either party.

       The stipulation specified that any examination regarding these reports at

trial would focus on “matters related to patterns of [Ziegler’s] opinions that can be

shown over the body of work that she has performed as a forensic expert,”

particularly concerning findings of malingering and disagreements with treating

doctors regarding TBI and treatment plans.        The proposed stipulation did not

provide for redaction of the records before they were disclosed to Volkert. Ziegler

did not agree to produce the records and Fairbank did not sign the proposed

stipulation.

       Volkert then filed a motion requesting that the court strike Ziegler’s

objections to the subpoena and order her to produce the documents. In the motion,

Volkert argued that the reports were not confidential and were relevant to show



                                        -5-
No. 77308-9-1/6

Ziegler’s bias against treating doctors. Through independent counsel, Ziegler filed

a response to the motion arguing that the reports contained confidential health

information, the request was unduly burdensome because Ziegler would be

required to redact each of the reports extensively, and that production and analysis

of the reports would not lead to any new evidence because Ziegler had already

asserted at her deposition that she almost always testifies for defendants and

routinely disagrees with treating physicians. Ziegler included as an exhibit an

example of a stipulation regarding a CR 35 examination which includes the

following term:

       No part of the examiner’s report, testing, conclusions, opinions or
       files may be given or shown to anyone other than defendant, defense
       counsel and staff, and defendant’s expert witnesses for any reason.
       The doctor and defendant’s counsel should be permitted to use these
       for trial preparation and in trial only. They should not be disseminated
       to any other person at any time for any reason.

The sample stipulation was not from one of Ziegler’s files and was signed by a

different doctor. Counsel for Ziegler noted that, in reviewing her own files, over

two thirds of the CR 35 stipulations contained a similar confidentiality provision.

She also noted that these stipulations are not always provided to the examiners

and Ziegler would therefore have to check the court records of every case to

determine whether she could disclose the report. In his reply, Volkert argued that

Ziegler had no standing to assert the privacy interests of the subjects of her reports

and that, if the subjects had a right to privacy in these reports, they would

“obviously” assert it to stop her from testifying in their own cases.

       On August 23, 2017, the court struck Ziegler’s objections to the subpoena,

specifically noting that the “reports are relevant to show bias, are not health care


                                         -6-
No. 77308-9-1/7

records of Dr. Ziegler’s patients so RCW 70.02 does not apply, and the subpoena

is not overbroad or burdensome. Counsel shall redact any personal identifiers and

use initials only for any reports filed as exhibits.”

           On August 30, 2017, Fairbank filed a motion for emergency stay of superior

court proceedings and a motion for discretionary review in this court. The stay was

granted on September 1, 2017.           This court granted discretionary review on

September 27, 2017, finding that the trial court’s order substantially altered the

status quo within the meaning of RAP 2.3(b)(2) and that the Petitioners had made

a sufficient showing of probable error to warrant review.

                                     DISCUSSION

           Fairbank and Ziegler contend that the trial court committed error when it

struck the objections to Volkert’s subpoena because Ziegler’s reports are subject

to the protections of Washington’s Uniform Health Care Information Act1 (UHCIA)

and therefore cannot be disclosed absent notice to the examinees and an

opportunity to object. Because the trial court’s order misstated the standard for

applicability of the UHCIA and we are unable to say that none of Ziegler’s reports

contain qualifying health care information, we reverse.

          Normally, an appellate court reviews trial court discovery rulings for abuse

of discretion. T.S. v. Boy Scouts of America, 157 Wn.2d 416, 423, 138 P.3d 1053

(2006).      However, when the ruling is based upon interpretation of statutes or

judicial decisions, it constitutes an issue of law and is subject to de novo review.

Fellows v. Moynihan, 175 Wn.2d 641, 649, 285 P.3d 864 (2012). Here, the trial


       1   Chapter 70.02, RCW


                                          -7-
No. 77308-9-1/8

held that the reports were discoverable in their unredacted form because they were

“not health care records of Dr. Ziegler’s patients so ROW 70.02 does not apply.”

Because this ruling was based upon an interpretation of ROW 70.02, the ruling is

subject to de novo review.

       The Petitioners contend that Ziegler’s reports contain health care

information of the exam inees and are therefore subject to the protections of the

UHCIA. “The purpose of statutory construction is to give effect to legislative intent,

and when a statute is unambiguous, we derive its meaning from the plain language

of the statute alone.” Murphy v. State, 115 Wn. App. 297, 306, 62 P.3d 533 (2003)

(citing State v. Glas, 147 Wn2d. 410, 415, 54 P.3d 147 (2002)). The Supreme

Court has stated in the past that “Chapter 70.02 ROW is not ambiguous.” Berger

v. Sonneland, 144 Wn.2d 91, 105,26 P.3d 257 (2001).

       When enacting the UHCIA in 1991, the legislature made a number of

findings, including the following:

       (1) Health care information is personal and sensitive information that
       if improperly used or released may do significant harm to a patient’s
       interests in privacy, health care, or other interests.


       (3) In order to retain the full trust and confidence of patients, health
       care providers have an interest in assuring that health care
       information is not improperly disclosed and in having clear and
       certain rules for the disclosure of health care information.
       (4) Persons other than health care providers obtain, use, and
       disclose health record information in many different contexts and for
       many different purposes. It is the public policy of this state that a
       patient’s interest in the proper use and disclosure of the patient’s
       health care information survives even when the information is held
       by persons other than health care providers.




                                        -8-
No. 77308-9-1/9

RCW 70.02.005.

       Under the UHCIA, “a health care provider.     .   .   may not disclose health care

information about a patient to any other person without the patient’s written

authorization” unless the disclosure is specifically allowed elsewhere in the Act.

RCW 70.02.020(1).      “Health care information” is defined as “any information,

whether oral or recorded in any form or medium, that identifies or can readily be

associated with the identity of a patient and directly relates to the patient’s health

care.” RCW 70.02.010(17). A “patient” is simply defined as “an individual who

receives or has received health care.” RCW 70.02.010(32). “Health care” is in

turn defined as “any care, service, or procedure provided by a health care provider

    [tb diagnose, treat, or maintain a patient’s physical or mental condition.” ROW

70.02.010(15). A “health care provider” is “a person who is licensed, certified,

registered, or otherwise authorized by the law of this state to provide health care

in the ordinary course of business or practice of a profession.” ROW 70.02.010(19).

The UHCIA does not contain any requirement that a doctor-patient relationship

exist between the health care provider and patient for its provisions to apply.

      The UHCIA permits disclosure of health care information in the course of

discovery so long as the attorney seeking discovery “provide[sJ advance notice to

the health care provider and the patient or the patient’s attorney.      .   .   indicating the

health care provider from whom the information is sought, what health care

information is sought, and the date by which a protective order must be obtained

to prevent the health care provider from complying.” RCW 70.02.060(1). This

process is necessary to “give the patient and the health care provider adequate


                                        -9-
No. 77308-9-1/10

time to seek a protective order,” which is specified as a time period of at least

fourteen days.     14. Only after the attorney seeking discovery has complied with
these procedures may the request for discovery be served on the health care

provider. j4~ Unless the patient has previously consented to disclosure of the

information in writing, the health care provider is not permitted to disclose the

requested information if the requesting attorney has not followed these

procedures. ROW 70.02.060(2). If the requestor complies with these requirements

and there is no protective order forbidding disclosure, the health care provider shall

disclose the information.       ~4. A person who has complied with these requirements
may maintain an action against a health care provider or facility who has not

complied for actual damages. ROW 70.02.170.

       Relatively few cases have interpreted the provisions of the UHCIA. The

most relevant and important discussion of these issues can be found in John Doe

C v. Dep’t of Corrections, in which the Washington Supreme Court ruled that

special sex offender sentencing alternative (SSOSA) evaluations were not covered

by the UHCIA. 190 Wn.2d 185, 410 P.3d 1156 (2018). The plaintiff in John Doe G

submitted a request under the Public Records Act2 (PRA) for SSOSA evaluations

“held, maintained, in the possession of or owned” by the Department of Corrections

(DOC). 190 Wn.2d at 189. The PRA requires state agencies to produce records

for public inspection upon request unless the records are exempt from disclosure

under the PRA itself or another statute. ROW 42.56.070(1).           “A SSOSA is a

sentencing alternative that allows a trial court to suspend a first time sex offender’s


       2   Chapter 42.56, RCW


                                           -10-
No. 77308-9-Ill 1

felony sentence if that offender meets certain statutory criteria.” John Doe G, 190

Wn.2d at 192. SSOSA evaluations are used to determine whether the offender is

amenable to treatment and assess their level of risk to the community. ~ The

evaluations contain the offender’s version of the facts and the official version of the

facts, the offender’s offense history, an assessment of problems in addition to

alleged deviant behaviors, the offender’s social and employment situation, any

other evaluation measures used, and the evaluator’s diagnostic impressions. ki.

at 192—93. The evaluations are performed by a certified sex offender treatment

provider. iç[. at 193.   The governing statute generally prohibits the evaluating

treatment provider from providing subsequent treatment to the offender. ki.

       Upon these facts, the Court of Appeals, Division I found that the SSOSA

evaluations contained health care information and were therefore covered by the

UHCIA and exempt from the PRA. John Doe G v. Dep’t of Corrections, 197 Wn.

App. 609, 619, 391 P.3d 496 (2017). This court found that the offenders qualified

as “patients” under the UHCIA and noted that the broad definition for this term

evidenced the legislature’s intent for this term not to “limit what qualifies as ‘health

care information.” j4. at 620 (citing Hines v. Todd Pac. Shipyard Corp., 127 Wn.

App. 356, 366-67, 112 P.3d 522 (2005)). This court rejected the DCC’S “narrow

interpretation of health care” as care, services, or procedures provided for the sole

purpose of diagnosis, treatment, or maintenance of physical or mental condition.

ki. at 62 1—22. Rather, this court found that SSOSA evaluations included a service

or procedure provided by a health care provider to diagnose a patient’s mental

condition, and therefore directly related to the examinees’ health care. ki. at 623.



                                         -11-
No. 77308-9-1112

Accordingly, the evaluations contained health care information and were subject

to the provisions of the UHCIA. Id. at 623. This court held that unredacted SSOSA

evaluations were exempt from PRA disclosure. ki.

       The Supreme Court disagreed. The Court reasoned that the legislature’s

use of the term “directly relate[d]” instead of simply “related” indicated its intent to

narrow the definition of “health care information.” John Doe G, 190 Wn.2d at 193.

The Court quoted Webster’s Dictionary to define “directly” as “purposefully or

decidedly and straight to the mark.” j4. Noting that the PRA requires a narrow

reading of exemptions to disclosure, the Supreme Court read the definition of

“health care information” as “information directly related—or in other words—for

the direct purpose of health care.” Id. at 193—94 (emphasis in original). The Court

also noted that “[e]xempting information that is incidentally related to health care

would be inconsistent with the PRA’s broad disclosure policy.” ki. at 194.

      The Court went on to note that a SSOSA evaluation does not contain health

care information because the evaluation’s “purpose is to assist the court in

determining whether the offender should be granted an alternative sentence

instead of jail time.” ki. The Court assigned importance to the fact that SSOSA

evaluations are forensic, rather than medical, evaluations. ki. The Court relied on

a case from 1962 for the proposition that “forensic examinations are not subject to

the same privacies and privileges as medical evaluations.” ki. (citing State v.

Sullivan, 60 Wn.2d 214, 223—24, 373 P.2d 474 (1962)). In Sullivan, the Court

considered whether the statutory doctor-patient testimonial privilege applied to

statements made by the defendant to a psychiatrist during the course of her court


                                        -   12-
No. 77308-9-1/13

ordered psychiatric examinations and treatment when the sanity or competency of

the defendant to stand trial was not at issue. 60 Wn.2d at 222—23. The decision

noted that the doctor-patient privilege was not available for a forensic examination

by a physician because “the relationship of doctor and patient does not exist” and

“the examination is not for the purpose of treatment, but for the publication of

results.” j~ at 223—24. The Sullivan Court quoted a 1917 case in which it said:

       In order to render a physician incompetent, the information which he
       is called upon to disclose must have been acquired while he was
       attending the patient in a professional capacity for the purpose of
       treating her ailments; there is no privilege when the examination is
       made by the physician for the express purpose of publishing the
       results—such, for example, as testifying in an action for personal
       injuries.


ki. at 224 (quoting Strafford v. Northern Pac. R. Co., 95 Wn. 450, 453, 164 P. 71

(1917)). This stands to reason—forensic evaluations of personal injury plaintiffs

by defendants’ experts would be useless if the plaintiffs could claim that the doctor-

patient testimonial privilege prevented the experts from testifying about the results

at trial. However, Sullivan did not discuss the use of the information contained in

forensic examinations outside of the physician’s testimony at the examinee’s trial.

       In John Doe G, the Supreme Court acknowledged that the doctor-patient

privilege was not at issue but noted that SSOSA evaluations are made for the

purpose of publishing the results to the court and with the understanding that the

results will be shared. 190 Wn.2d at 194—95. The Court also noted that SSOSA

evaluations are not focused on the patient’s health but rather “assess[ ] treatment

options in the best interest of the court, the community, the victim, and the

offender.”   ~4. at 195. The Court found it “noteworthy” that the statute generally

                                        -13-
No. 77308-9-1/14

prohibits the treatment provider who conducts a SSOSA evaluation from

subsequently treating the offender, saying that this shows the legislature’s intent

to separate the forensic and medical stages. ~ Although the SSOSA evaluations

include the provider’s diagnostic impressions and proposed treatment plan, these

are used to assess the offender’s amenability to treatment. kL at 195—96. Because

amenability to treatment is a threshold issue when deciding to grant an alternative

sentence and because the determination includes assessment of many non-

medical factors, the Court found this to be a legal determination rather than a

medical one. ki. at 196—97.        Therefore, the Court concluded that SSOSA

evaluations were made for the purpose of aiding a court in sentencing a sex

offender and held that they were not exempt from PRA disclosure under UHCIA

because they do not contain health care information.     at 197. Notably, the record

did not contain any examples of SSOSA evaluations and the Court’s holding was

based on its “understanding of the statutory purpose and ‘ingredients’ of a SSOSA

evaluation, not on an actual evaluation.” ki. at 189 n.1, 197 n.3.

       Here, Ziegler is a licensed, practicing psychologist in Washington, so she

meets the definition of a “[h]ealth care provider.” RCW 70.02.010(19). Therefore,

she is prohibited from disclosing a patient’s health care information unless

authorized by the patient or by some other provision of UHCIA. RCW 70.02.020.

This determination does not appear to be in dispute.

      This case differs from John Doe C in a number of ways. First, and perhaps

most importantly, the record in this case contains a sample CR 35 evaluation in

the form of Ziegler’s report on Volkert. The report contains significant identifying


                                       -   14-
No. 77308-9-1/15

information, including his name, date of birth, and various other specific personal

details. Ziegler’s 62-page report on Volkert includes detailed summaries of his

medical records describing his treatment on the day of the accident and follow-up

appointments for over a year afterward. These summaries contain symptoms that

he described to his treating doctors, personal information about stressor events in

his life, and descriptions of his relationships with family members, among other

details.   These facts, feelings, and opinions that comprise this personal and

sensitive information were conveyed to Volkert’s treating physicians for the

purpose of obtaining care for his physical and mental health.         Accordingly, it

appears that the information contained within the reports is health care information

and is protected by UHCIA.

       The Supreme Court in John Doe G devoted significant space to analyzing

the meaning of the word ‘directly” but did not give any guidance as to the meaning

of the term “information”. ~ 190 Wn.2d at 193—94. When enacting the UHCIA,

the legislature found that the Act concerned “personal and sensitive information

that if improperly used or released may do significant harm to a patient’s interests

in privacy, health care, or other interests.” ROW 70.02.005(1).        Although the

Supreme Court began by considering “whether SSDSA evaluations             .   contain

health care information,” the Court’s language subtly shifted when it later described

the “pertinent inquiry” as “whether a SSOSA evaluation directly relates to a

patient’s health care.” John Doe C, 190 Wn.2d at 193 (internal brackets and

quotation marks omitted) (citing RCW 70.02.010(16)). The Court noted that the

legislature could have defined “health care information” as any information related



                                       -15-
No. 77308-9-1/16

to health care rather than directly related, but the legislature also could have

chosen to protect “medical records” rather than “health care information.” ki. The

wording of the Act and the findings that introduce it seem to indicate that the

legislature intended to protect a broader range of sensitive, personal information

that can be contained within a variety of documents.

       Although the Supreme Court read “directly related to health care” narrowly,

it did so noting that the PRA requires such a narrow reading of exemptions to

disclosure. John Doe G, 190 Wn.2d at 194. The PRA recognizes that the people

have delegated their authority to govern themselves to the agencies that serve

them and remaining informed is integral to supervising and maintaining control

over those systems. RCW 42.56.030. A narrow reading of exemptions serves this

public policy. j.çj~ The provisions of the PRA will supersede those of any other act

if the two conflict. kL

       In this case, the strong public policy in favor of disclosure for the sake of

governmental transparency does not apply because the requests for disclosure

are discovery requests rather than public record requests. Generally, parties may

obtain discovery regarding any matter that is relevant and not privileged. CR 26(a).

However, a court may enter a protective order limiting or modifying discovery “to

protect a party or person from annoyance, embarrassment, oppression, or undue

burden or expense.” CR 26(c). Courts also weigh privacy interests against the

needs of the litigant seeking disclosure when considering motions to limit

discovery. Boy Scouts of America, 157 Wn.2d at 430. The UHCIA contains a

specific provision governing discovery of health care information. RCW 70.02.060.


                                       -   16-
No. 77308-9-1117

Documents containing protected information are still discoverable after the

requesting party takes the requisite measures to inform patients that it is seeking

disclosure of their information, therefore allowing patients sufficient time to obtain

protective orders, if necessary. ki.

       This does not conflict with the Supreme Court’s discussion of Sullivan. As

the Supreme Court noted, neither John Doe G nor this case involved a claim of

doctor-patient privilege. John Doe G, 190 Wn.2d at 194. The Court extrapolated

that Sullivan stands for the proposition that forensic and medical examinations are

not subject to the same privacies and privileges. hi. Privilege is not at issue in this

case. It may well be true that privacy considerations are different between forensic

and medical evaluations.       In the context of UHCIA, it seems that medical

examinations would necessarily contain health care information and be subject to

the protections of the act, while forensic examinations may not always contain

qualifying health care information. However, it does not follow from the rule that

the doctor-patient privilege does not apply to forensic evaluations that there is

necessarily no privacy interest at all in information contained in forensic

evaluations. The legislature acknowledged when enacting the UHCIA that health

record information is used by people other than health care providers in many

different contexts and for many different purposes. RCW 70.02.005(4). This did

not change the legislature’s finding that patients have a privacy interest in

restricting disclosure of their health care information regardless of the context or

who holds the information. RCW 70.02.005(1), (4).




                                        -   17-
No. 77308-9-1/18

          In John Doe C, the Court noted that SSOSA evaluations are made for the

purpose of publication to the court and with the understanding of the offender that

they will be shared with others. 190 Wn.2d at 194—95. Similarly, Ziegler’s forensic

reports are made at the request of counsel to assist her in testifying to the results

of her examinations and she informs the examinees that the confidentiality of the

information that they share with her is limited because she will be testifying in open

court.     However, she does not seek or obtain consent from the examinees to

discuss their information outside the context of their own cases. A plaintiff does

not waive the right to privacy when he avails himself of the court system.

Schlac~enhauf v. Holder, 379 U.S. 104, 113—14, 85 S.Ct. 234, 13 L. Ed. 2d 152

(1964); accord In re Det. of Williams, 147 Wn.2d 476, 496, 55 P.3d 597 (2002)

(Chambers, J., concurring).

          Finally, the Supreme Court noted that, unlike an ordinary health

examination, a SSOSA evaluation does not focus on the patient’s health. John

Doe C, 190 Wn.2d at 195. SSOSA evaluations must take into account effects of

an alternative sentence such as community impact, the risk to the victim, and the

interests of justice. ~ These considerations are not relevant to Ziegler’s reports.

Ziegler’s evaluations are purely focused on the examinees’ neuropsychological

health.

          The trial court’s finding that RCW 70.02 did not apply to the reports because

they were not “health care records of Dr. Ziegler’s patients” was erroneous.

Documents are not required to be health care records of a provider’s patients to

be covered by the provisions of the UHCIA. Rather, the UHCIA applies when any


                                          -   18-
No. 77308-9-1/19

kind of document contains protected health care information. Because Ziegler is

a health care provider and her reports contain health care information of the

examinees, she is prohibited from disclosing them except through the process

specified in RCW 70.02.060.           Volkert must comply with the provisions of the

UHCIA governing discovery to provide notice and an opportunity to obtain a

protective order to Ziegler’s prior examinees.

        Reversed    .~




WE CONCUR:




~ This court considered a motion by Appellant Fairbank to strike Respondent’s Statement of
Additional Authorities. That motion is denied.


                                             -   19-
