                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                               ________________________

                                   No. 07-18-00345-CV
                               ________________________

 IN RE KYLE MCADAMS, EXECUTOR FOR THE ESTATE OF MICHAEL CAMERON
HODGES, M.D., DECEASED AND M. CAMERON HODGES, M.D., P.L.L.C., RELATORS



           Original Proceeding Arising Out of Proceedings in the 181st District Court
                                     Potter County, Texas
            Trial Court No. 107,219-B; Honorable John B. Board, Presiding Judge


                                      November 29, 2018

                 ORDER ON MOTION FOR REHEARING
             AND MOTION FOR EN BANC RECONSIDERATION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       This court denied Relators’ Petition for Writ of Mandamus on October 29, 2018.1

Relators have now filed their Motion for Rehearing or, Alternatively, Motion for En Banc

Reconsideration contending that the “extraordinary circumstances” of this case require

that we withdraw our prior opinion and in its place issue a new opinion requiring



       1  In re Kyle McAdams, et al., No. 07-18-00345-CV, 2018 Tex. App. LEXIS 8829 (Tex. App.—
Amarillo Oct. 29, 2018, orig. proceeding) (mem. op.).
Respondent, the Honorable John B. Board, to vacate his order for the limited production

of Dr. Hodges’s personal medical and mental health records. For a more thorough

discussion of the relevant facts and issues, we refer the reader to our prior opinion.


       By three issues, Relators contend this court erred by (1) utilizing an interpretation

of Rules 509 and 510 of the Texas Rules of Evidence that was rejected by the Texas

Supreme Court in R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) (orig. proceeding), (2)

using an overly broad definition of relevance, and (3) failing to consider the policy

ramifications of allowing discovery into the medical and mental health records of a

physician in a medical malpractice case. Having considered Relators’ motion and the

response of Real Parties in Interest, we deny the motion for rehearing and motion for en

banc reconsideration.


       With respect to Rules 509 and 510 and the scope of the definition of relevance, all

parties agree the deciding issue in this proceeding is whether Real Parties in Interest (as

Plaintiffs) are relying on the medical or mental health condition of Dr. Hodges as a part of

their claim.   Relators contend this court misinterpreted Ramirez because we first

determined whether the questioned records were “relevant” to that determination before

we determined if they were a “part” of the claims of Real Parties in Interest. In making

their argument, Relators parse the language of Ramirez to ultimately contend that in order

to be a “part” of a party’s claim or defense, a patient’s medical or mental health condition

must be “central” to that claim or defense and it must be an “ultimate” issue. We reject

that narrow interpretation. The Supreme Court, in Ramirez, stated that in order for an

exception to the physician-patient privilege to apply, the “scope of the exception should

be tied in a meaningful way to the legal consequences of the claim or defense.” Id. at

                                             2
842 (rejecting an interpretation that relies on relevance alone). In doing so, the Supreme

Court emphasized that there must be something more than a tangential connection

between the records being sought and the claim or defense of the party seeking to invoke

the exception. Because this court did determine that there was a “meaningful” connection

between the claim of Real Parties in Interest and the information being sought in our

analysis of the applicability of the exceptions to Rule 509, Physician-Patient Privilege,

and Rule 510, Mental Health Information Privilege, we overrule Relators’ first two issues.


       With respect to the contention that this court failed to consider the policy

ramifications of allowing discovery into the medical and mental health records of a

physician in a medical malpractice case, we remind Relators that it is not the function of

this court to make policy decisions.     Those decisions are better left to the Texas

Legislature in enacting statutes and in delegating the authority to issue rules, and the

Texas Supreme Court in the interpretation of those matters. As such, Relators’ third issue

is overruled.


       CONCLUSION

       Relators’ Motion for Rehearing and Motion for En Banc Reconsideration are

denied.




                                                Patrick A. Pirtle
                                                     Justice




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