Manzutto v. Hon. gass/isec

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JOEL DANA MANZUTTO, by and through his
Conservator DIANA MANZUTTO, Petitioner,

v.

THE HONORABLE DAVID B. GASS, Judge of the
SUPERIOR COURT OF THE STATE OF ARIZONA,
in and for the County of MARICOPA, Respondent Judge,

ISEC, INC., Real Party in Interest.

No. 1 CA-SA 18-0128
FILED 7-31-18

Petition for Special Action from the Superior Court in Maricopa County
No. CV2017-011627
The Honorable David B. Gass, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED IN PART

COUNSEL

Levenbaum Trachtenberg, PLC, Phoenix
By Geoffrey M. Trachtenberg, Justin Henry
Counsel for Petitioner
Lewis Brisbois Bisgaard & Smith LLP, Phoenix
By Carl F. Mariano, Gina M. Bartoszek, Haley A. Harrigan
Counsel for Real Party in Interest ISEC, Inc.

The Sorenson Law Firm, LLC, Tempe
By Johnny J. Sorenson, Matthew M. Nicely
Counsel for Real Party in Interest Shannon Stearns

Miller, Pitt, Feldman & McAnally, P.C., Tucson
By Stanley G. Feldman
Co-Counsel for Amicus Curiae Arizona Association for Justice/Arizona Trial
Lawyers Association

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Co-Counsel for Amicus Curiae Arizona Association for Justice/Arizona Trial
Lawyers Association

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Lori L. Voepel, Jonathan Paul Barnes, Jr.
Counsel for Amicus Curiae Arizona Association of Defense Counsel

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Kent E. Cattani joined.

W I N T H R O P, Judge:

¶1 This special action arises out of an order entered by the
superior court, compelling Joel Dana Manzutto (“Petitioner”), through his
conservator, to execute authorizations permitting Real Party in Interest,
ISEC, Inc. (“ISEC”)1, to obtain Petitioner’s medical records.2 This court has

1 Defendant Shannon Stearns joins ISEC’s Response to the Petition for
Special Action; for ease of reference, we refer to both Real Parties in Interest
collectively as “ISEC.”

2 ISEC also sought authorizations for Petitioner’s employment,
insurance, and compensation records. Because these authorizations are not

2
 MANZUTTO v. HON. GASS/ISEC
Decision of the Court

considered the parties’ written submissions.3 Because special action is an
appropriate means of relief when the superior court orders a party to
disclose what is or what may be privileged, see e.g., Blazek v. Superior Court, 177 Ariz. 535, 536 (App. 1994), we accept jurisdiction and grant relief in part.

PROCEDURAL BACKGROUND

¶2 Petitioner initiated an action against ISEC, seeking damages
for serious personal injuries arising out of an October 2016 motor vehicle
collision. In the underlying action, Petitioner seeks recovery for pain,
suffering, and other general damages; past medical expenses and the cost
of future medical care; lost earnings and loss of prospective earning
capacity; and loss of enjoyment of life and other hedonic damages.4

¶3 In his initial and supplemental disclosure statements,
Petitioner identified numerous health care providers, and produced
thousands of pages of medical records. ISEC sought to verify the accuracy
and completeness of these disclosures, and requested that Petitioner
execute authorizations requiring the various medical providers to produce
medical records directly to ISEC’s counsel.

¶4 ISEC’s medical authorizations requested, in part, “[a]ny and
all records” for Petitioner, including a “release of records of confidential
information relating to testing and treatment of alcohol, chemical or drug
abuse . . . tests or treatment for communicable diseases including any HIV-
related information . . . psychotherapy/mental health treatment and notes
. . . and, genetic testing information.” The medical authorizations further
directed that the recipient “produce copies of ALL records in your

addressed in the Petition, we limit our analysis and the relief granted to the
medical authorizations.

3 We have received and considered the Petition for Special Action,
ISEC’s Response, Petitioner’s Reply, and only with respect to the issues
raised before the superior court, we have accepted and considered Arizona
Association for Justice/Arizona Trial Lawyers Association’s First Amended
Amicus Curiae Brief, and Arizona Association of Defense Counsel’s Amicus
Curiae Brief.

4 In their briefing to this court, the parties advise that Petitioner has
incurred over $2 million in medical care and expenses to date, will require
additional medical care, and likely will not make any meaningful physical
recovery or return to gainful employment.

3
 MANZUTTO v. HON. GASS/ISEC
Decision of the Court

possession pertaining to the above individual, and not just those records
you deem to be relevant or related to one particular accident, event or
circumstance.”

¶5 Petitioner declined to execute ISEC’s authorizations as
requested; however, counsel for Petitioner offered to provide modified
authorizations that would instead direct the production of these records to
Petitioner’s counsel. Once received and reviewed, Petitioner proposed to
produce copies of all relevant and non-privileged records to defense
counsel. For any withheld records, Petitioner’s counsel offered to provide
a privilege log and submit any contested records to the superior court for
an in camera review, similar to the process outlined in Blazek. See 177 Ariz.
at 542.

¶6 After an unsuccessful meet and confer on the issue of the
authorizations, ISEC moved to compel Petitioner to execute the requested
authorizations, arguing Petitioner waived any alleged privilege by placing
his medical condition at issue when he filed the underlying action. In
response, Petitioner contended that the implied waiver resulting from filing
the lawsuit was “limited to the medical records for the treatment of his
traumatic brain injury and orthopedic injuries,” which Petitioner avowed
have all been produced. Following briefing, the superior court granted the
motion, directing Petitioner to execute ISEC’s authorizations and further
ordered Petitioner to execute any future defense-requested authorizations
within thirty days of issuance.5 This Petition for Special Action followed.

ANALYSIS

¶7 In Arizona, the physician-patient privilege is statutory. See
Ariz. Rev. Stat. (“A.R.S.”) § 12-2235 (prohibiting a physician from offering
testimony revealing physician-patient communications without patient
consent). The patient is the holder of this privilege and can waive it. See
A.R.S. § 12-2236. A patient waives any claim to privilege of medical records
when he: (1) expressly waives the privilege in writing; (2) voluntarily

5 The superior court’s order (1) summarily grants ISEC’s Motion to
Compel, which mandates Petitioner execute all authorizations (medical,
employment, and insurance); (2) denies ISEC’s request for attorneys’ fees
and costs associated with its Motion to Compel; (3) requires Petitioner to
provide authorizations for identified medical providers by June 15, 2018;
and (4) mandates that Petitioner execute “any future defense-requested
authorizations that include an identified medical provider within 30 days
of receiving the request.”

4
 MANZUTTO v. HON. GASS/ISEC
Decision of the Court

testifies about the subject medical condition in open court; or (3) “pursu[es]
a course of conduct which is inconsistent with the observance of the
privilege, such as by placing the underlying . . . condition at issue as a claim
or an affirmative defense.” Blazek, 177 Ariz. at 541; see also Bain v. Superior
Court, 148 Ariz. 331, 334 (1986) (recognizing that the scope of an implied
waiver of the physician-patient privilege only extends to privileged
communications concerning a specific condition that has been voluntarily
placed at issue by the privilege holder).

¶8 ISEC argues that Petitioner has placed his entire medical
condition at issue and has therefore impliedly waived any privilege.
Petitioner concedes waiver of privilege only with respect to the particular
medical conditions caused by the motor vehicle collision.

¶9 Without question, Petitioner has placed at issue and waived
any medical privilege for records detailing (1) the care and treatment of his
injuries resulting from the subject collision; and (2) the care, analyses,
calculations, and opinions that form the basis or affect the computation of
future health care needs, loss of earning capacity and life expectancy, and
other claimed damages. Determining the ultimate scope of implied waiver,
as measured by relevance to the issues raised in the litigation to date, is the
point of the current controversy.

¶10 Petitioner’s counsel avows that they have produced all
records in their possession, and will, in good faith, continue to produce all
other non-privileged records they obtain that are relevant to these issues.
In their memoranda submitted to the superior court and this court, ISEC
implies that Petitioner will “self-select” the relevant records, leaving ISEC
no meaningful recourse.

¶11 This type of dispute is not new. In most cases, counsel can
and should ultimately agree on the nature and scope of the medical
conditions at issue and the extent of the records that may be relevant to
those conditions. Further, counsel often cooperate in how the records are
obtained and shared. However, where, as here, there is disagreement about
both relevance and waiver, the superior court must intervene.

¶12 In this instance, the superior court abused its discretion in
summarily granting ISEC’s Motion to Compel. The superior court did not
hold a hearing on the issue, and its minute entry does not provide any
reasoning that explains why it granted ISEC’s request for blanket medical
authorizations, including whether it agrees with ISEC that Petitioner has
impliedly waived all privilege. Similarly, there is no indication of what

5
 MANZUTTO v. HON. GASS/ISEC
Decision of the Court

factors the court considered in making its decision. For these reasons, we
accept jurisdiction of this Petition for Special Action and grant relief in part.

¶13 To resolve the present issue, the superior court should make
the appropriate findings as to the extent of Petitioner’s waiver of privilege.
Then the court shall direct the parties to fashion a procedure to determine
relevance and waiver issues regarding Petitioner’s medical records. If the
parties cannot agree on a procedure to follow, the court shall impose a
process for the parties to follow. The superior court shall, in the absence of
an agreement of the parties, determine what procedure is appropriate. That
procedure, at the superior court’s discretion, may (1) require the medical
authorizations be modified to direct the production of records to
Petitioner’s counsel, requiring immediate review and production of
relevant, non-privileged records, along with a detailed privilege log
identifying those documents being withheld and the reason therefor,
allowing ISEC to then seek an order compelling production of the contested
documents; or (2) direct that the medical authorizations require the subject
records be directly produced to the court or to a court-appointed special
master for review and report to the court and the parties as to relevance and
waiver issues; or (3) consider whether, under these circumstances, some
form of mutual confidentiality order might be sufficient to advance the
goals of discovery while still providing sufficient protection concerning
privileged and/or non-relevant information. There certainly may be other
options for the parties to propose and for the superior court to elect. We
express no opinion as to which option the superior court should implement.
The portion of the superior court’s May 10, 2018 order requiring Petitioner
to execute ISEC’s medical authorizations, current and “future defense-
requested,” is vacated.

¶14 Each party shall bear its own attorneys’ fees incurred in this
special action. As the prevailing party, Petitioner is awarded his reasonable
costs, provided he timely complies with Arizona Rule of Procedure for
Special Actions 4(g) and Arizona Rule of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: JT
6