July 30, 2020

Charles Heaphy died in December 2017 while in the care of health care provider Willow Canyon. The decedent’s wife subsequently filed an Arizona wrongful death action, grounded in medical malpractice, against Willow Canyon and others. The statutory beneficiaries included the decedent’s wife and their three adult children.

Willow Canyon sought discovery of the beneficiaries’ medical records. The wife asserted that she and the other beneficiaries had not waived the physician-patient privilege as to those records and the records were not “relevant to life expectancy.” A judge permitted discovery of some recent records, determining that, because the beneficiaries had claimed an ongoing loss of companionship by the decedent, their life expectancies were at issue in the case, and their medical records could be relevant to that issue. Thus, the judge concluded the beneficiaries had waived the physician-patient privilege. The wife filed a special action, challenging the judge’s order.

In its June 18, 2020 opinion, the Arizona Court of Appeals Division Two (“Arizona Appellate Court”) vacated the judge’s order requiring disclosure of the statutory beneficiaries’ medical records, explaining that Willow Canyon’s position that, by seeking future damages, the life expectancy of the statutory beneficiaries is “at issue” and their medical records are thus relevant and any applicable privilege is waived, would mean that a plaintiff waives the physician-patient privilege in any case involving future damages, which was an expansion of Arizona law prohibited by Arizona Supreme Court precedent.

The Arizona Appellate Court explained that under A.R.S. § 12-2236, the physician-patient privilege is waived if (1) the privilege holder offers himself as a witness and voluntarily testifies with reference to privileged communications and (2) when the holder places a particular medical condition at issue by means of a claim or affirmative defense. The Arizona Appellate Court further explained that “placing a condition “at issue” means more than a possibility the condition could be relevant; upholding the privilege must instead “deny the inquiring party access to proof needed fairly to resist the [privileged party]’s own evidence on that very issue.””

In the case it was deciding, the Arizona Appellate Court stated: “Willow Canyon argues that, by seeking future damages, the life expectancy of the statutory beneficiaries is “at issue” and their medical records are thus relevant and any applicable privilege is waived. But, as we have noted, that privileged information may be relevant to a claim is not sufficient to overcome the privilege … [a]nd, even if denying access to the beneficiaries’ medical records denies Willow Canyon access to evidence that counters the beneficiaries’ future damages claims, the privilege still is not waived because there is no particular medical condition at issue … merely placing one’s general health at issue is insufficient to waive the medical privilege. Instead, the privilege holder must make an assertion about or present evidence about a particular condition before waiver may be implied.”

The Arizona Appellate Court stated: “Our supreme court has determined the benefits of the privilege outweigh any evidentiary obstacles unless a particular medical condition is at issue … Because no such condition is present here, there has been no implied waiver of the physician-patient privilege.”

Source Heaphy v. Willow Canyon Healthcare Inc., No. 2 CA-SA 2020-0001.

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