Clay v. Woodbury County, Iowa et al

Filing 58

ORDER denying 48 Motion to Quash subpoena and discovery deposition of treating psychiatrist (See Order Text). Signed by Magistrate Judge Leonard T Strand on 7/18/2013. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
NICOLE A. CLAY,
Plaintiff,

No. C12-4042-MWB

vs.

ORDER

WOODBURY COUNTY, IOWA, et al.
Defendants.

Plaintiff has filed a motion (Doc. No. 48) to quash subpoena and discovery
deposition of her treating psychiatrist.

The motion addresses a subpoena and deposition

notice issued with regard to Albert Okine, PA-C, by defendants Woodbury County,
Iowa, Glenn J. Parrett, Amy Strim, Brigid Delaney, Jorma Schwedler and Dustin
DeGroot (the “County defendants”).

Plaintiff contends that the physician-patient

privilege, as recognized and applied under Iowa law, prohibits the County defendants
from compelling testimony from Okine. The County defendants have filed a resistance
(Doc. No. 51). The motion is fully submitted.
Factual Background
Plaintiff Nicole A. Clay filed this case on April 27, 2012. In her third Amended
Complaint, she states that on August 12, 2011, she was arrested for public intoxication, a
simple misdemeanor. She alleges that after she was taken to the Woodbury County jail,
the defendant correctional officers engaged in an unreasonable strip search in violation of
the Fourth Amendment and violated her First Amendment rights by engaging in this
activity in retaliation for her verbal objections to their conduct. Clay also alleges that
some of the defendants conducted an unreasonable search of her purse in violation of the
Fourth Amendment.

In addition, she alleges that Woodbury County and Parrett

established a policy, regulation, official decision, custom or usage with reckless or
deliberate indifference to her rights. She demands a jury trial.
In Clay’s initial discovery disclosures, she supplied her records of therapy with
Albert Okine, PA-C, as well as billing statements from Okine's clinic, Dean &
Associates. She also supplied a signed Patient's Release of Information allowing the
defendants to obtain her medical records from Dean & Associates.
In her answer to Interrogatory No. 16, Clay stated that her damages include past
pain and suffering and past loss of mind/body function. In answering Interrogatory No.
15, she identified Okine as being one of “Plaintiff’s medical providers relating to the
assault.”

She described him as a psychiatric physician's assistant who provided

psychiatric treatment and care to Clay prior to and following the incident, and who
continues to treat her. Clay also designated Okine in her expert witness disclosures,
stating that he would testify regarding her injuries, including alleged ongoing emotional
injuries and how her pre-existing mental and emotional injuries were aggravated by the
jail incident.
Clay’s Third Amended Complaint, filed January 2, 2013, alleges that she was
“traumatized” by the defendants’ allegedly-unlawful conduct. See Doc. No. 37 ¶ 23.
She further alleges that she suffered damages because she was subjected to searches that
were “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant,
embarrassing, repulsive, and signified degradation and submission.” Id. ¶ 28. She
contends that she has been damaged because of the defendants’ conduct, “as set out in
this Complaint.” See, e.g., id. ¶ 58.
During Clay’s deposition in April 2013, she testified that some of her treatment at
Dean & Associates was related to the jail incident. She further testified that her anxiety
had increased as a result of the incident and the dosages of the medications she was
taking for anxiety had increased. In addition, she stated that she discussed the incident
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at the jail with Okine at a number of sessions (although defendants point out that the
notes from these sessions do not mention the incident). Clay also testified that the past
pain and suffering that she claims as damages included her “emotional well being.”
She stated that she was having emotional difficulties involving anxiety, for which she
was treating with Okine.
After the deposition, and upon reviewing additional medical records, the County
defendants sought to schedule Okine’s deposition. Clay’s counsel responded on June 6,
2013, by stating: "We are not going to use Okine and will not be asking for damages
based upon psychological damages other than related to the physical injuries." In her
motion, Clay further promises that she will not (a) seek to introduce Okine’s records into
evidence at trial or (b) seek damages for any psychiatric loss beyond the pain and
suffering associated with the physical injuries caused by the defendants’ alleged conduct.
Clay’s Motion ¶ 4.

Based on these self-imposed limitations, Clay argues that the

County defendants are not entitled to depose Okine concerning his treatment of Clay.
The County defendants disagree.
Analysis
The parties agree that the extent and impact of Clay’s physician-patient privilege
in this case is determined by Iowa law.

See Cimijotti v. Paulsen, 219 F. Supp. 621,

623-24 (N.D. Iowa 1963). The Iowa Code prohibits the disclosure of confidential
communications between a patient and a mental health professional except "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. Iowa Code § 622.10(2).
This exception is sometimes called the “patient-litigant exception.”

See, e.g., In re

Marriage of Hutchinson, 588 N.W.2d 442, 447 (Iowa 1999). In addition, of course, a
patient may choose to waive the physician-patient privilege.
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See Iowa Code

§622.10(2); State v. Demaray, 704 N.W.2d 60, 64-65 (Iowa 2005). Here, the County
defendants argue that the patient-litigant exception applies and, in any event, that Clay
has waived the physician-patient privilege.
The Patient-Litigant Exception. As noted above, this exception applies only if
Clay’s emotional condition “is made is an element or factor of the claim or defense.”
Iowa Code § 622.10(2). It “requires that the condition of the patient be an element or
factor in a claim or defense of the patient.”

Ashenfelter v. Mulligan, 792 N.W.2d 665,

672 (Iowa 2010). The Iowa Supreme Court has “specifically rejected the argument that
a litigant's opponent can bring the litigant's medical records into issue.”
Chung v. Legacy Corp., 548 N.W.2d 147, 150 (Iowa 1996)).

Id. (citing

“The 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.”

Chung, 548 N.W.2d at 150. The purpose

of the exception “is to prevent the patient from using the privilege to suppress evidence
after the patient has frustrated the purpose of the privilege by introducing evidence on his
or her own medical condition.”

Hutchinson, 588 N.W.2d at 447.

At trial, the

evidence is admissible “only as it relates to the condition alleged.”

Iowa Code §

622.10(2).
Prior to June 6, 2013, there could have been no doubt that Clay made her
emotional condition an element or factor of her claim. She identified Okine in sworn
interrogatory answers as being one of her “medical providers relating to the assault.”
She further indicated that she intended to seek emotional distress damages based on the
jail incident and designated Okine as an expert witness who would testify regarding her
injuries, including her alleged ongoing emotional distress and the aggravation of her
pre-existing mental and emotional injuries. She confirmed during her deposition in
April that she is claiming her anxiety increased after the jail incident and that some of her
treatment at Dean & Associates was related to the incident. Thus, before June 6, the
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patient-litigant exception easily applied and a deposition of Okine would have been fair
game.
The real question is whether Clay’s counsel, by announcing a change of position,
undid the exception. Neither party cites authority on this issue. After analyzing the
statutory language and the Iowa Supreme Court’s application of the patient-litigant
exception, I find that circumstances could exist that would allow the exception, once
established, to be dissolved. I also find, however, that those circumstances are not
present here.
Clay has not provided a supplemental interrogatory answer stating that she no
longer seeks damages of an emotional or mental nature.1 Instead, her attorney has
simply represented that Clay (a) will not seek to offer records or testimony from Okine at
trial and (b) will not seek damages “for any psychiatric loss beyond the pain and
suffering associated with the physical injuries caused by” the defendants’ alleged
conduct. See Clay’s Motion ¶ 4. Clay’s announcement that she will not offer Okine’s
testimony or records at trial certainly does not eliminate the patient-litigant exception.
The issue is whether her emotional condition is an “element or factor” of her claim, not
how she intends to prove her claim at trial.

Clay’s approach would allow a litigant to

selectively apply the patient-litigant exception, maintaining a claim for emotional
damages while putting certain health care providers off limits by declaring an intention
not to rely on those providers during his or her case-in-chief.
Clay’s attempt to limit the scope of her “psychiatric loss” damages is closer to the
mark, but it is actually too cute. In fact, it falls directly within the purpose of the
patient-litigant exception, as described in Hutchinson. Clay still seeks to recover some
damages for “psychiatric loss,” but wants to limit any evidence of that loss to her own
1

At least, I assume this is the case. The County defendants provided copies of various
interrogatory answers with their resistance and Clay did not file a reply or otherwise insert new,
supplemental answers into the record.
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testimony about suffering that she will claim is “associated with the physical injuries.”
In other words, she wants to offer evidence about her medical condition and use the
physician-patient privilege to suppress additional, and possibly contradictory, evidence.
Clay quotes Chung for the cautionary proposition that an “imaginative lawyer”
can almost always make the opposing party’s physical or mental condition a factor in the
case, thereby creating an argument for applying the patient-litigant exception. Clay’s
Brief at 3 (quoting Chung, 548 N.W.2d at 150-51). This concern is not present here.
Clay has actively and definitively inserted her emotional condition into this case from the
beginning. While I see no reason why a litigant could not dissolve the patient-litigant
exception by clearly and unambiguously removing a medical condition from his or her
case, that has not happened here. Clay’s own motion demonstrates that she still intends
“psychiatric loss” to be part of this case, to some degree. As such, the patient-litigant
exception still applies and the County defendants are free to depose Okine.
Waiver.

The County defendants also argue that Clay has waived the

physician-patient privilege by virtue of her conduct throughout this case. The acts that
allegedly give rise to a waiver include: (a) voluntarily providing copies of Okine’s
records to defense counsel, (b) providing a signed patient’s waiver allowing the
defendants to obtain records from Okine, (c) designating Okine as an expert witness and
(d) testifying about her counseling and treatment with Okine. Under Iowa law, the
physician-patient privilege “may be waived by the defendant's disclosure or consent to
disclosure of the privileged information.” Demaray, 704 N.W.2d at 65.
In determining whether a waiver has occurred, the “important focus is on the
concept of confidentiality.”

Id. at 66.

Once a patient consents to the release of

medical information, he or she destroys the confidentiality between him or her and the
doctor with regard to that information.

Id.

While consent can be revoked, such

revocation does not reinstate the privilege with regard to information already disclosed.
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Id.

Moreover, “voluntary disclosure of the content of a privileged communication

constitutes waiver as to all other communications on the same subject.”

Miller v.

Continental Ins. Co., 392 N.W.2d 500, 504–05 (Iowa 1986).
Based on these principles, it is clear that Clay has waived her physician-patient
privilege with regard to Okine. Her initial disclosures in this case included copies of
Okine’s records. She also executed a patient’s waiver that allowed the defendants to
obtain treatment records. Further, she testified in detail about her sessions with Okine.
It is far too late for Clay to change her mind and reinstate the physician-patient privilege
between herself and Okine. Clay’s waiver of that privilege provides an alternative basis
for denying Clay’s motion.
Summary. Clay could have maintained her statutory privilege with regard to
Okine by never asserting a claim based on emotional injury or, at least, by withdrawing
that claim before taking actions that waived the privilege. Now, long after waiving the
privilege, she seeks to reinstate it while also withdrawing only part of her claim for
emotional injury. Her effort is not sufficient to dissolve the patient-litigant exception
and, in any event, is far too late. The County defendants are entitled to depose Okine
concerning his counseling and treatment of Clay.
discovery, not admissibility.

Of course, this order addresses

Clay remains free to argue that Okine’s testimony is

irrelevant or otherwise inadmissible at trial.
Conclusion
For the reasons described herein, plaintiff’s motion (Doc. No. 48) to quash
subpoena and discovery deposition of her treating psychiatrist is denied.

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IT IS SO ORDERED.
DATED this 18th day of July, 2013.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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