Petition for Writ of Mandate. David Fields, Judge. Granted. (Super. Ct. No. CK88912)
The opinion of the court was delivered by: Kumar, J.*fn4
CERTIFIED FOR PUBLICATION
Evidence Code*fn1 section 994 provides a patient with the power to prevent a third party from disclosing any "confidential communication" with a medical professional. The patient-litigant exception to this privilege (§ 996) indicates, in pertinent part, that the privilege is not applicable "to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by: [¶] (a) [t]he patient; [or] [¶] (b) [a]ny party claiming through or under the patient . . . ."
The two issues presented concern the applicability of the patient-litigant exception to dependency proceedings:
(1) Does a child who is the subject of a Welfare and Institutions Code section 300 dependency petition tender the issue of his or her sexual history in the litigation, within the meaning of section 996, subdivision (a), by disclosing sexual abuse at the hands of a parent to authorities or by submitting to a forensic medical exam prior to the filing of the dependency petition?
(2) Does the Department of Children and Family Services become a "party claiming through or under the [child]," within the meaning of section 996, subdivision (b), by filing a Welfare and Institutions Code section 300 dependency petition containing allegations that the child was sexually abused by a parent?
Respondent superior court ("superior court") ruled petitioner Karen P. ("the child") could not avail herself of the physician-patient privilege to prevent real party in interest the father ("the father") from subpoenaing the child's medical records of sexual history for in camera review by the court. It relied on section 996 in concluding the child's physician-patient privilege was inapplicable. The superior court noted that the child's medical condition was at issue but it did not specify the particular subdivision of that section upon which it relied.
The father argues the superior court's ruling was correct because subdivisions (a) and (b) of section 996 constituted an exception to a child's otherwise legitimate physician-patient privilege. We disagree. The child did not tender her medical condition in the litigation by disclosing the purported abuse*fn2 to authorities or by submitting to a forensic medical exam. Additionally, the Department of Children and Family Services did not claim "through or under" the child by filing the dependency petition. The petition for writ of mandate is granted.
The parties do not dispute the relevant superior court proceedings. Real party in interest, the Department of Children and Family Services ("DCFS"), filed a petition pursuant to Welfare and Institutions Code section 300 alleging, inter alia, the father sexually abused and raped the child. The father subpoenaed medical records corresponding to the sexual history of the child. The child filed a motion to quash the subpoena. Counsel for the child argued the records were privileged under section 994 and therefore not discoverable by subpoena.*fn3
The superior court denied the motion to quash based on a finding that the child's medical condition was "being put at issue" within the meaning of section 996. In so doing , the superior court ordered the production of: "Any and all medical records [of the child] from . . . December 8, 2006 to the present limited to the following: examinations; referrals and reports relating to any sexual activity, sexually transmitted diseases; genitalia examinations, including PAP tests, including any claims regarding sexual abuse; any allegations of any sexual misconduct; whether or not reported to any agencies." The superior court sought to examine the medical records in camera and thereafter provide the father with "anything relevant." The instant petition followed.
We issued an alternative writ directing the superior court to vacate its order or show cause why it should not do so. The superior court declined to vacate its order. The father filed a return to the petition arguing the superior court's ruling was correct because: (1) the child tendered her medical condition when she (a) disclosed the abuse to a social worker and law enforcement, and (b) submitted to a forensic medical exam (§ 996, subd. (b)); and (2) the DCFS, as a party claiming through or under the ...