Palay v. Superior Court of Los Angeles County9/10/1993
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT DISTRICT, DIVISION THREE
No. B075140
1993.CA.42447 ; 18 Cal. App. 4th 919; 22 Cal. Rptr. 2d 839
Decided: September 10, 1993.
TEOGENES RODRIGUEZ PALAY, A MINOR, ETC., ET AL., PETITIONERS,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT; COUNTY OF LOS ANGELES ET AL., REAL PARTIES IN INTEREST.
Superior Court of Los Angeles County, No. SC015951, Douglas A. McKee, Judge.
Seaman & Dempsey and Sandra Tyson for Petitioners.
No appearance for Respondent.
Garcia, Emmons & Maranga, William O. Garcia, Greines, Martin, Stein & Richland, Timothy T. Coates, Barry M. Wolf, Rushfeldt, Shelley & Drake, Jo -Ann Horn Maynard, Bonne, Bridges, Mueller, O'Keefe & Nichols and John H. Dodd for Real Parties in Interest.
Opinion by Kitching, J., with Klein, P. J., and Croskey, J., Concurring.
Kitching
Plaintiff and petitioner Teogenes Rodriguez Palay, a minor, by and through his mother Inocente Palay, as guardian ad litem, and petitioner Inocente Palay, individually, seek a writ of mandate to compel respondent superior court to vacate an order made during the course of discovery requiring production of Inocente Palay's medical records relating to prenatal care at the Wilmington Community Free Clinic to defendants and real parties in interest County of Los Angeles (Harbor-UCLA Medical Center), St. Mary Medical Center, and Dr. Jonathan Lawrence (collectively referred to as Defendants).
In filing his action, Child waived his right to assert the physician-patient privilege by putting his own physical condition and medical records at issue. While Child has waived, Mother asserts a right to claim privilege as to prenatal records. We find that Mother cannot assert a privilege based on two grounds: (1) public policy; and (2) an interpretation of the litigation-exception that recognizes that during pregnancy, a mother's prenatal records are shared by both the mother and the fetus.
Since Child's medical records are inseparable from those of Mother during the time he was in utero, we find Mother's prenatal records relating to Child are also discoverable. The trial court did not abuse its discretion in finding these records discoverable and ordering their production. However, the trial court shall review these records in camera, which will accommodate both Mother's right to privacy and Defendants' right to disclosure.
Accordingly, the petition is denied. The stay imposed by this court shall remain in effect until issuance of the remittitur.
FACTUAL AND PROCEDURAL BACKGROUND
This petition involves a conflict between a litigant's right to discovery and a nonparty's right to invoke the physician-patient privilege. The matter arises from a medical malpractice action brought on behalf of a minor, by his mother, as guardian ad litem. The question confronting us is whether the prenatal medical records of a mother, a nonparty to the litigation, whose child has filed a medical malpractice action, are discoverable or subject to a claim of privilege and a concomitant right to privacy.
Child was born prematurely at Harbor-UCLA Medical Center (Harbor-UCLA) on November 23, 1988, with an atrial septal defect in his heart. He
was diagnosed as developmentally delayed, with signs of cyanosis, brain damage and a heart def
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