PETITION for writ of mandate. James D. Endman, Commissioner. Petition granted in part and denied in part. (Los Angeles County Super. Ct. No. BD487729)
The opinion of the court was delivered by: Kitching, J.
CERTIFIED FOR PUBLICATION
This is a marital dissolution action brought by Real Party in Interest David Y. Manela (father) against Petitioner Mira R. Manela (mother). One of the principle issues in the case is whether father should be granted joint custody over the couple's 4-year-old son, Jacob. In connection with that issue, father and mother became embroiled in a discovery dispute that is the subject of our opinion.
Mother contends that father has a ―seizure‖ disorder that affects his ability to care for Jacob. Father denies mother's allegations and contends that he merely has a ―tic‖ that is controlled by medication. Mother subpoenaed the medical records of two of father's physicians, Dr. Hart C. Cohen and Dr. Andrea H. Morrison, claiming that the records will support her allegations regarding father's seizures. The trial court, however, granted father's motion to quash the subpoenas on the ground that the documents were protected by the physician-patient privilege. Mother filed a petition for a writ of mandate requiring the trial court to vacate its order quashing the subpoenas.
We hold that the trial court abused its discretion by quashing the subpoena to Dr. Cohen because father waived the physician-patient privilege with respect to certain records of Dr. Cohen. We also reject father's claim that his medical records are protected by his constitutional right to privacy. As we will explain, that right is not absolute and, in this case, father's privacy interests are outweighed by the state's compelling interest in protecting Jacob's best interests. We further hold, however, that the trial court did not abuse its discretion with respect to quashing the subpoena to Dr. Morrison because the documents mother sought from Dr. Morrison were privileged.
1. Father's Alleged Medical Condition
Mother claims that father suffers from regular ―seizures‖ which last from 45 seconds to 21/2 minutes. The seizures usually occur when father awakens from sleep.*fn1
Although father does not lose consciousness when the seizures occur, mother claims the seizures cause father's head, neck, shoulders, and one arm to seize and that the seizures are ―extremely loud and very frightening.‖ Mother further claims that the seizures cause father to temporarily lose his ability to speak and often cause him to vomit. Father denies that he has a seizure disorder. Instead, father contends, he has a ―tic‖ which is controlled by medication.
2. Father's Divorce Petition and Application for an OSC Re Custody and Visitation
On June 17, 2008, father filed a petition for dissolution of marriage. In his petition, father requested that custody of Jacob be awarded ―consistent with the best interest of the minor child.‖ In her response to father's petition, mother requested that the court award custody of Jacob to her alone.
On August 7, 2008, father filed an ex parte application for an Order to Show Cause (OSC) regarding child custody and child visitation. In that application, father requested that he and mother be given joint physical custody. Father's application did not directly raise the issue of his alleged seizure disorder. Father, however, did state that mother's counsel advised him that if he sought custody of Jacob, mother would disclose certain information regarding father and his parents that would damage father's reputation in the Orthodox Jewish community and his professional reputation as a cardiologist. On August 7, 2008, in response to father's application for an OSC, mother filed a declaration regarding, inter alia, father's alleged seizure disorder.
On the same day, August 7, 2008, the court issued a ―non-prejudicial‖ order regarding father's visitation rights. The court ―temporarily‖ prohibited father from driving Jacob until it obtained more information regarding father's alleged seizure disorder. The court also scheduled a hearing on the OSC and a briefing schedule for the parties.
On August 12, 2008, mother filed another declaration which discussed father's alleged seizure disorder, as well as documents purportedly showing that father received prescriptions for Tegretol, which mother claimed is prescribed for seizures. Mother requested that father be allowed to visit Jacob three days a week, but not be allowed overnight visits and not be allowed to drive a vehicle with Jacob in it.
On August 13, 2008, father filed declarations in support of the OSC, including the declaration of Dr. Benjamin Gross, a neurologist. Dr. Gross stated in his declaration that he had treated father for the past nine years for hypnagogic movements, also known as a tic disorder. Dr. Gross further stated that father's condition has been controlled by Tegretol and that there was no neurological reason to restrict father's ability to drive an automobile or to prevent father from caring for Jacob.
On August 15, 2008, the court issued an order granting father and mother joint legal custody over Jacob. The court granted mother primary physical custody over Jacob and father secondary physical custody, specifying the days and nights on which Jacob would be with father. The court did not place any limitations on father's right to drive Jacob.
At the August 15, 2008, hearing, the court stated that the evidence was ―quite clear that [father] does not suffer from seizures as the term is generally recognized to me . . . .‖ The court further stated that father's tics only occurred ―when he's ready to go to bed. Presumably he's not about to go to sleep before he's put the child to bed. And even under anybody's characterization, the most it [the alleged seizure] lasts is about two and a half minutes, generally quite less. I don't see that it in any way impairs his [father's] ability to be involved, to have the child ...