               IN THE SUPREME COURT OF IOWA
                                No. 08–2075

                           Filed December 30, 2010


JERRY L. and SUSAN ASHENFELTER,

      Appellees,

vs.

AMY S. MULLIGAN,

      Appellant.



      Appeal from the Iowa District Court for Plymouth County,

Jeffrey A. Neary, Judge.



      On   interlocutory     appeal,   appellant   contends   district   court

improperly ordered her to disclose medical and mental health records to

appellees. DISTRICT COURT ORDER REVERSED.



      Jennifer H. Cerutti, Iowa Legal Aid, Sioux City, for appellant.



      Elizabeth A. Rosenbaum, Sioux City, for appellees.
                                            2

STREIT, Justice.

      Amy Mulligan appeals a district court order allowing her parents,

Jerry and Susan Ashenfelter, to review her medical and mental health

records for purposes of their petition seeking grandparent visitation with

Amy’s son, A.M. This case has become moot because the ability to seek

court-ordered grandparent visitation is now limited to grandparents

whose own child has died.            Because the issue of mental and medical

health records in the grandparent visitation context is likely to reoccur,

however, we choose to reach the issue.                  Amy has a statutory and
constitutional right to privacy in her medical and mental health records,

and the Ashenfelters failed to override that right with a countervailing

interest. The district court order is reversed.

      I. Background Facts and Prior Proceedings.

      Amy Mulligan and Alan Mulligan1 are parents to six-year-old A.M.

Jerry and Susan Ashenfelter are Amy’s parents and A.M.’s grandparents.

Amy and Alan separated in December 2007 and had a pending

dissolution action when the Ashenfelters sought visitation.                 Soon after

Amy and Alan’s separation, Amy decided it was in A.M.’s best interest

not to see his grandparents (her parents), the Ashenfelters.                         The

Ashenfelters filed a petition seeking grandparent visitation pursuant to

Iowa Code section 600C.1 (Supp. 2007).

      The Ashenfelters served discovery requests on Amy seeking (1) a

complete copy of Amy’s 2008 commitment court file, including any and

all reports, records, etc., submitted by Dr. Dean and/or Siouxland

Regional Medical Center and Dr. Patra; (2) a complete copy of Amy’s

2007 commitment court file, including any and all reports, records, etc.,


      1For   clarity, we refer to Amy Mulligan and Alan Mulligan by their first names.
                                           3

submitted by Dr. Dean, Dr. Patra, and Mercy Medical Center;2 (3) a

complete copy of Amy’s 2007 medical records for Mercy Medical Center;

(4) a complete copy of Amy’s 2008 medical records from Siouxland

Regional Medical Center; (5) a complete copy of any and all records from

Plains Area Mental Health regarding Amy from January 1, 2004, to

present time; (6) a complete copy of any and all records regarding Amy

from Jackson Recovery Center from January 1, 2004, to present time;

(7) a complete copy of any and all records regarding Amy from Dr. Dean’s

office from January 1, 2004, to present time; and (8) any and all notes,
records, or reports regarding Amy from counseling sessions at the

Council on Sexual Assault and Domestic Violence (CSADV) and with

Cathy VanMaanen from January 1, 2004, to the present time.

       The Ashenfelters also presented interrogatories asking Amy to

“[l]ist all physicians and medical providers and mental health providers

and facilities who have provided care to you since January 1, 2004, by

providing” the name of the provider, phone number and address of the

provider, dates seen, reasons they saw Amy, and the last time Amy was

treated by the provider. The interrogatories sought Amy’s current mental

health diagnosis and all medications currently prescribed to Amy,

including the name, dosage, and frequency.

       Amy moved for a protective order.             The district court held that

because the Ashenfelters must prove Amy is unfit to make a decision

regarding grandparent visitation in order to obtain visitation, Amy’s

mental health is at issue.         The court held that because Amy’s mental

health is at issue, the statutory physician-patient privilege in Iowa Code

section 622.10 does not apply. The district court ordered production of

       2The     parties agree there is no such court file because Amy was voluntarily
hospitalized.
                                            4

all documents requested by the Ashenfelters except for the request

relating to documents from the CSADV. The court also ordered Amy to

answer all interrogatories.

        We granted an application for interlocutory appeal and an

emergency stay. We reverse.

        II. Scope of Review.

        Discovery decisions are typically reviewed for abuse of discretion.

State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). However, this court

reviews the interpretation of Iowa Code section 622.10 for correction of
errors at law. Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996).

Constitutional claims are reviewed de novo. Santi v. Santi, 633 N.W.2d

312, 316 (Iowa 2001).

        III. Merits.

        A. Mootness. Amy filed a motion to dismiss based on grounds of

mootness.       We agree the case is moot.              The Ashenfelters sought

grandparent visitation with Amy’s child, A.M., on August 21, 2008,

under the then-existing grandparent visitation statute, Iowa Code section

600C.1.     The Ashenfelters are Amy Mulligan’s parents.               Under section

600C.1     as   it   existed   in   2008,       grandparents   could    petition   for

grandparent visitation, provided they met the requirements of the

statute:    (1) the grandparents have a substantial relationship with the

child, (2) the parent is unfit to make the decision regarding visitation,

and (3) visitation is in the best interest of the child.

        After the Ashenfelters’s filed their petition, the Iowa legislature

struck section 600C.1 in its entirety and replaced it. 2010 Iowa Acts ch.

1193, § 130. The new grandparent visitation section took effect July 1,
2010.      The current section 600C.1 provides the right to petition for

grandparent visitation “when the parent of the minor child, who is the
                                      5

child of the grandparent or the grandchild of the great-grandparent, is

deceased.” Iowa Code § 600C.1(1). Amy moved to dismiss because the

Ashenfelters are her own parents, and because she is not deceased, the

Ashenfelters do not have standing under the current section 600C.1 to

seek visitation.

      Application of the current section 600C.1 is straightforward and

precludes the Ashenfelters’ petition.     “As a rule, every case must be

determined on the law as it stands at the time judgment is pronounced.”

Windsor v. City of Des Moines, 110 Iowa 175, 179, 81 N.W. 476, 477
(1900).      Although the “legislature cannot impair the obligation of

contracts, nor by subsequent legislation disturb vested rights,” here, as

in Windsor, the parties’ rights have not vested because there has been no

final decree. Id.

      This is a suit in equity, and is triable de novo in this court.
      Until final decree is passed, there is no vested right to be
      disturbed, and the case must be determined on the law as it
      now stands. These are elementary propositions . . . .

Id. at 180, 81 N.W. at 477.
      Amy also notes the legislative change to the grandparent visitation

statute is a substantial change in circumstances which would allow

modification of a grandparent visitation award. See Spiker v. Spiker, 708
N.W.2d 347, 358–59 (Iowa 2006) (holding ruling that grandparent

visitation    statute   was   unconstitutional   entitled   parent   to   seek

modification of grandparent visitation award); cf. In re Marriage of

Feustel, 467 N.W.2d 261, 265 (Iowa 1991) (holding a change in federal

income tax law regarding claiming children as dependents constituted

substantial change in circumstances). Although Spiker and Feustal both
dealt with awards that were already entered, their reasoning suggests the

Ashenfelters’ petition should be dismissed. As this court noted in Spiker,
                                     6

the grandparents “ ‘have no power to require of the court continuing

enforcement of rights the [grandparent visitation] statute no longer

gives.’ ” Spiker, 708 N.W.2d at 358 (alteration in original) (quoting Sys.

Fed’n No. 91, Ry. Emps.’ Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 652, 81

S. Ct. 368, 373, 5 L. Ed. 2d 349, 355 (1961)). Although the Ashenfelters

had a statutory right to petition for grandparent visitation in 2008, they

no longer have such a right in 2010. Because the Ashenfelters cannot

require “enforcement of rights the grandparent visitation statute no

longer gives,” id., it follows that the Ashenfelters cannot be allowed to
pursue a petition the statute no longer permits.

      Although the case is now moot, we may choose to reach the basic

underlying question after considering the following criteria: “ ‘(1) the

public or private nature of the question presented, (2) desirability of an

authoritative adjudication for future guidance of public officials, and

(3) likelihood of future recurrence of the same or similar problem.’ ”

Rush v. Ray, 332 N.W.2d 325, 326 (Iowa 1983) (quoting Bd. of Dirs. of

Ind. Sch. Dist. v. Green, 259 Iowa 1260, 1265, 147 N.W.2d 854, 856

(1967)).   Here, we believe individual privacy interests in medical and

mental health records presents an issue of great public interest. Also, we

foresee this issue arising in the future, in the context of grandparent

visitation as well as other civil contexts.      Therefore, we proceed to

address the issue.

      B. Protection of Amy’s Medical and Mental Health Records

under Iowa Code Section 622.10. Amy argues her medical records are

protected under Iowa Code section 622.10. Section 622.10 provides:

      A practicing . . . counselor, physician, . . . [or] mental health
      professional, . . . who obtains information by reason of the
      person’s employment . . . shall not be allowed, in giving
      testimony, to disclose any confidential communication
                                      7
       properly entrusted to the person in the person’s professional
       capacity, and necessary and proper to enable the person to
       discharge the functions of the person’s office according to
       the usual course of practice or discipline.

Iowa Code § 622.10(1).

       1.   Applicability of section 622.10.   Amy argues her medical and

mental health records are protected from discovery by the privilege found

in section 622.10.      The Ashenfelters argue section 622.10 does not

protect the records and information they seek because compliance with

the discovery requests does not require disclosure “in giving testimony.”

See id.

       In Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349 (1958), this

court held a medical record could not be admitted into evidence because

it was properly considered a privileged “communication” under Iowa

Code section 622.10. Newman, 249 Iowa at 843–44, 89 N.W.2d at 354–

55. Therefore, any attempt by the Ashenfelters to introduce the medical

records they seek would invoke consideration of section 622.10.        This

raises the question, however, of whether the protections of section

622.10 apply to discovery of such medical records prior to introduction

at trial.
       Some of this court’s previous cases suggest medical or mental

health records sought during discovery are not protected by section

622.10, although these cases either did not directly address the issue or

are easily distinguished. In Chidester v. Needles, 353 N.W.2d 849 (Iowa

1984), the court held the phrase “in giving testimony” meant section

622.10 did not protect a patient’s documents sought by a county

attorney conducting an investigation into Medicaid fraud. Chidester, 353

N.W.2d at 852. The court emphasized that the patient’s doctor was not
being required to testify “indirectly” because the documents were sought
                                    8

only for an investigation, they would remain confidential, and they could

not be used as testimony for trial. Id. at 852–53. Similarly, in McMaster

v. Iowa Board of Psychology Examiners, 509 N.W.2d 754 (Iowa 1993), the

court held that section 622.10 did not protect medical records sought by

the Iowa Board of Psychology Examiners as part of an investigation of a

practicing psychologist. McMaster, 509 N.W.2d at 757. The court held

that the board’s subpoena did not fall under the provision of section

622.10 protecting “testimony.”    Id.   Unlike the state investigations at

issue in Chidester and McMaster, the Ashenfelters sought Amy’s records
for pending civil litigation that does not involve the state or a licensing

board as a party.

      In Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353

(Iowa 1986), we stated: “Testimony is a declaration by a witness in court

or during a deposition.”    Roosevelt Hotel, 394 N.W.2d at 355.       This

statement could be interpreted to suggest “testimony” as used in section

622.10 does not include medical records. However, Roosevelt Hotel was

concerned with ex parte interviews—as compared with in-court verbal

testimony—and did not address medical records.           See id. at 354.

Additionally, in Newman, where medical records were sought to be

introduced at trial, the court held they were protected by section 622.10.

Newman, 249 Iowa at 843–44, 89 N.W.2d at 354–55.

      This court’s more recent cases suggest the privilege found in

section 622.10 does extend to documents sought during discovery. State

v. Eldrenkamp, 541 N.W.2d 877 (Iowa 1995), reiterated that information

found in medical records contains “privileged communications under

section 622.10 ‘to the same extent that the knowledge and information of
the examining or treating physician is privileged.’ ” Eldrenkamp, 541

N.W.2d at 881 (quoting Newman, 249 Iowa at 844, 89 N.W.2d at 355). In
                                    9

Eldrenkamp, the issue surrounded a blood sample taken in Illinois, and

because Illinois had a statute specifically excluding the physician-patient

privilege in homicide cases, the court held the records were discoverable.

Id.

      The next year, in Chung, the court directly addressed a request for

medical records during discovery. Chung, 548 N.W.2d at 148. The court

held the “statutory rule of testimonial exclusion has been extended by

rule to the discovery of confidential communications.” Id. at 149. The

court cited to Iowa Rule of Civil Procedure 1.503—then rule 122(a)—
which prohibits discovery of privileged materials.    Id.   Essentially, the

court held that because medical records are privileged under Iowa Code

section 622.10 when introduced as evidence, they are privileged matters

protected from discovery under rule 1.503. Id.

      In State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), the court again

reiterated that the statutory protection of privileged information extends

to medical records, noting “the privilege would be virtually meaningless if

it prohibited testimony but did not protect the very records upon which

such testimony would be based.” Heemstra, 721 N.W.2d at 560. The

court also explained that “[u]nder rule of civil procedure 1.503(1),

privileged information is generally not even discoverable.” Id. Despite

this discussion, Heemstra did allow for limited disclosure of medical

records in an in camera review. Id. at 563. Heemstra was a criminal

case in which the defendant sought medical records to help prove his

defense of self-defense. Id. at 559. This court held that “privileges must

be tempered by defendants’ constitutional right to present a defense.” Id.

at 562. Similarly, this court recently provided a protocol for evaluating
whether medical records will be submitted for attorney review in a
                                      10

criminal case based on constitutional considerations.          See State v.

Cashen, 789 N.W.2d 400, 408–10 (Iowa 2010).

         The medical records sought by the Ashenfelters are protected from

use as testimony and therefore from introduction at trial pursuant to

Iowa Code section 622.10. See Eldrenkamp, 541 N.W.2d at 881 (holding

medical records are privileged “ ‘to the same extent that the knowledge

and information of the examining or treating physician is privileged.’ ”

(quoting Newman, 249 Iowa at 844, 89 N.W.2d at 355)). This is a civil

case. Iowa Rule of Civil Procedure 1.503 prohibits discovery of privileged
materials.      Therefore, because the medical records are privileged

materials under section 622.10, they are not discoverable under rule

1.503. Chung, 548 N.W.2d at 149.

         2.   Patient-litigant exception under Iowa Code section 622.10.

Section 622.10 provides an exception to the privilege in certain

circumstances when a patient is also a litigant. The privilege does not

apply:

         in a civil action in which the condition of the person in
         whose favor the prohibition is made is an element or factor of
         the claim or defense of the person or of any party claiming
         through or under the person.

Iowa Code § 622.10(2).         The district court held the patient-litigant

exception applies to Amy’s medical records because her fitness is an

issue in the case; and therefore, Amy’s records are discoverable.         We

disagree.

         The language of the patient-litigant exception requires that the

condition of the patient be an element or factor in a claim or defense of

the patient. As this court explained in Chung, “[t]he statute requires the
condition be an element or factor of the claim or defense of the person

claiming the privilege.” 548 N.W.2d at 150. We have specifically rejected
                                      11

the argument that a litigant’s opponent can bring the litigant’s medical

records into issue. Id. Additionally, “[t]he denial of an element or factor

of one’s opponent’s case does not make that element or factor part of the

case of the person making the denial.” Id. “[T]he mere act of denying the

existence of an element or factor of an adversary’s claim does not fall

within the statutory language.” Id.

      Here, the Ashenfelters bear the burden to prove Amy is unfit.

Amy’s fitness, and therefore her mental health, is an element or factor in

the Ashenfelters’s claim. Amy’s mere act of denying the Ashenfelters’s
claim that she is unfit does not fall within the patient-litigant exception

in section 622.10.

      C. Constitutional Right to Privacy. Amy argues her records are

protected by the constitutional right to privacy. We agree. Mental health

and medical records are protected by a constitutional right to privacy.

See Cashen, 789 N.W.2d at 407 (“We recognize a patient’s right to

privacy in his or her mental health records . . . .”); McMaster, 509 N.W.2d

at 758 (“[T]he majority of [courts] hold that the right of privacy should

extend to the patient records of mental health professionals. . . . We join

those courts that extend constitutional protection to such records.”).

      D. Balancing Test.       The Ashenfelters argue Amy’s statutory

privilege and constitutional right to privacy protecting her medical and

mental health records can be overcome through the use of a balancing

test. As we explained in Cashen, the constitutional right to privacy in

medical and mental health records is “not absolute, but qualified.” 789

N.W.2d at 406.    Similarly, in discussion of Iowa Code section 622.10,

Heemstra applied a balancing test and explained that “these privileges
must be tempered by defendants’ constitutional right to present a

defense.” 721 N.W.2d at 562.
                                       12

      The balancing test weighs an individual’s privacy interest against

other public interests such as “the societal need for information”

possessed by official investigators of criminal activity, Chidester, 353

N.W.2d at 853, “society’s interest in securing information vital to the fair

and effective administration of criminal justice,” id., and the “defendants’

constitutional right to present a defense,” Heemstra, 721 N.W.2d at 562;

accord Cashen, 789 N.W.2d at 407.

      The United States Supreme Court has suggested that a balancing

test will never be appropriate in a civil case. In Jaffee v. Redmond, 518
U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996), the Court expressly

rejected the Seventh Circuit’s use of a balancing test to determine

whether the medical records of the defendant in a federal civil action

were discoverable. Jaffee, 518 U.S. at 17, 116 S. Ct. at 1932, 135 L. Ed.

2d at 349. The court held that “[m]aking the promise of confidentiality

contingent upon a trial judge’s later evaluation of the relative importance

of the patient’s interest in privacy and the evidentiary need for disclosure

would eviscerate the effectiveness of the privilege.” Id. Because we hold

that even if we were to apply a balancing test, Amy’s medical records

must remain protected, we need not address whether the balancing test

is inappropriate in all civil cases.

      The     Ashenfelters    have     not   asserted   a   counterbalancing

consideration that would override Amy’s privilege in her mental and

medical health records.      This is a civil proceeding.    Unlike our recent

decision in Cashen, the constitutional right to a fair trial is not

implicated.

      We reject the Ashenfelters’s attempt to characterize the interest
they assert as the best interest of A.M. Amy is presumed to act in the

best interest of A.M.    In re Marriage of Howard, 661 N.W.2d 183, 190
                                      13

(Iowa 2003) (noting “presumption of fitness accorded a parent”); Santi,

633 N.W.2d at 319 (noting “historical presumption that fit parents act in

the best interests of their children”). Amy’s parental interest in the care,

custody, and control of A.M. is a fundamental liberty interest protected

by the United States and Iowa Constitutions. See Marriage of Howard,

661   N.W.2d    at   191–92    (holding    grandparent   visitation   statute

unconstitutional because it allowed the court to grant grandparent

visitation where parents were divorced without a determination of

parental unfitness); Santi, 633 N.W.2d at 321 (holding grandparent
visitation statute unconstitutional as applied to married parents because

it did not require a determination of parental unfitness); see also Troxel v.

Granville, 530 U.S. 57, 67, 120 S. Ct. 2054, 2060–61, 147 L. Ed. 2d 49,

57 (2000) (holding Washington’s third party visitation statute was

unconstitutional because it failed to presume a fit parent makes

decisions in the best interests of the child).

      Amy is presumed to be a fit parent and she has made a

determination that visitation with the Ashenfelters is not in the best

interest of A.M. The Ashenfelters’s reliance on In re Hough, 590 N.W.2d

556 (Iowa Ct. App. 1999), to suggest the courts may simply analyze the

best interests of the child in grandparent visitation cases is misplaced.

See Hough, 590 N.W.2d at 558. Hough was based on a prior visitation

statute and decided before Santi and Marriage of Howard. Marriage of

Howard specifically held that “the best interests of a child requirement

. . . is insufficient” to withstand constitutional scrutiny in a grandparent

visitation statute. 661 N.W.2d at 191.

      The Ashenfelters attempt to compare their interest to that of the
State in a child-in-need-of-assistance (CINA) action.        We reject this

comparison. The Ashenfelters’s petition for grandparent visitation is not
                                    14

a CINA action, and the Ashenfelters do not have the authority of the

State to pursue a CINA case.     We reach no conclusion regarding the

ability of a court to order disclosure of medical or mental health records

to the State in a CINA action.      Here, the State conducted a CINA

assessment based on allegations that included Amy’s mental health

status. The State recommended against juvenile court involvement. The

State also did not recommend any services.            Instead, the CINA

assessment determined: (1) “there does not appear to be much of a base

to the allegations made,” (2) “Amy has many support systems,” (3) “it
appears that [Amy] has taken appropriate steps for [A.M.], and (4) Amy

“has done better since separating herself from her family.”

      The Ashenfelters’s desire for visitation cannot overcome Amy’s

constitutional and statutory privilege against production of her medical

and mental health records in a petition for grandparent visitation.

      IV. Conclusion.

      The district court abused its discretion in ordering Amy to produce

her medical and mental health records to the Ashenfelters and to answer

related interrogatories. Amy’s records are protected by statute and by

her constitutional right to privacy. The Ashenfelters’s have not asserted

a countervailing interest which would override Amy’s constitutional right.

      DISTRICT COURT ORDER REVERSED.
