2010-550 Petition of State of New Hampshire (State of New Hampshire v. Richard MacDonald)

The State filed a petition for writ of certiorari, see

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penetration with K.H., a person whom he knew to be mentally defective. See of aggravated felonious sexual assault, alleging that he engaged in sexual County Grand Jury indicted the defendant, Richard MacDonald, on one count The record supports the following facts. In July 2009, the Strafford

Samdperil & Welsh, PLLC camera review of records from Community Partners or other providers for the five stays at the New Hampshire Hospital. The defendant also requested an in seeking an in camera review of K.H.’s medical and mental health records from RSA 632-A:2, I(h) (2007). On April 16, 2010, the defendant filed a motion

access to medical and mental health records of K.H. We reverse and remand. 11, challenging an order of the Superior Court (Brown, J.) granting the parties

THE SUPREME COURT OF NEW HAMPSHIRE memorandum of law and orally), for the defendant.

assistant attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as means for Counsel’s eyes only p. 2 destruction at the conclusion of the prosecution. Confidentiality share them with third parties and return the records for court

Counsel shall keep the records produced confidential and not

Community Partners and[/]or other providers.

additional records from the New Hampshire State Hospital,

produced to date and will supplement such upon receipt of

the Court shall provide to Counsel a complete set of the records any, are an element of the pending charge. With the above in mind to the State and Defense since the victim’s mental limitations, if produced to date that portions of the records may well be relevant

defective. The Court assumes without having reviewed the records

right, but rather at the discretion of the court. Petition of State of N.H. (State v. Certiorari is an extraordinary remedy that is not granted as a matter of K.H.’s medical and mental health records. See State may seek relief from the order granting the parties complete access to Here, we grant review because certiorari is the only avenue by which the Assault, the State having alleged that the victim was mentally

arbitrarily, unreasonably, or capriciously. Id The Defendant is charged with Aggravated Felonious Sexual. observance of the law, or unsustainably exercised its discretion or acted whether the trial court acted illegally with respect to jurisdiction, authority or substantial injustice. Laporte, 157 N.H. at 230. Certiorari review is limited to to grant the writ sparingly and only where to do otherwise would result in requesting that the court conduct an in LaPorte) On July 8, the State moved for reconsideration of the court’s ruling,, 157 N.H. 229, 230 (2008); see Sup. Ct. R. 11. We exercise our power

have rendered a decision on the State’s petition. stayed and both parties have agreed not to review the disputed records until we certiorari challenging the trial court’s ruling. Trial of this matter has been denied the State’s motion. The State then filed this petition for writ of records did not “encompass all that were requested.” It then ruled: camera review. The defendant objected. On July 15, the trial court summarily Hospital had “provided 2,002 pages of admission records for” K.H., but that the earlier order and “[r]elease only those records deemed appropriate after” the in On June 29, the court issued an order noting that the New Hampshire camera review consistent with its

closed hearing will be calendared to address admissibility issues. to be relevant for the Court[’]s consideration as to admissibility. A

trial court granted the defendant’s motion. documents being provided to the court for in camera review. On April 26, the twelve months preceding the alleged assault. The State did not object to the p. 3 See See

shall be required to disclose such privileged communications. disclosed, unless such disclosure is required by a court order.

except as otherwise provided by law, no such physician or surgeon be construed to require any such privileged communications to be basis as those provided by law between attorney and client, and, law between attorney and client, and nothing in this chapter shall

treatment. State v. Kupchun patient for the purpose of receiving complete medical and psychiatric The purpose behind these privileges is to encourage full disclosure by the

privilege). With respect to the psychotherapist-patient privilege, we have found 130 N.H. 106, 109 (1987) (discussing the nature of the physician-patient be both embarrassing and of little real consequence to society. Nelson v. Lewis the patient of such physician or surgeon are placed on the same, privileges recognize that much of what a physician learns from his patient may licensee’s client are placed on the same basis as those provided by 329:26 and RSA 330-A:19, former psychologist-patient privilege). The

N.H. R. Ev. 503(b).

physician or surgeon licensed under provisions of this chapter and The confidential relations and communications between a person licensed under provisions of this chapter and such The confidential relations and communications between any (Supp. 2010), states in pertinent part: The most recent codification of the physician-patient privilege, RSA 329:26 330-A:32 (2004) and states in relevant part: court was required to conduct an in to the physician-patient privilege and the psychotherapist-patient privilege. N.H. R. Ev. 503(a). The psychotherapist-patient privilege is codified at RSA Neither party disputes that the records the defendant seeks are subject The State argues that the records at issue are privileged and, thus, “the

unsustainable exercise of discretion standard. State v. Amirault

case. p. 3 See id. trial court’s ruling was clearly untenable or unreasonable to the prejudice of its 541, 543 (2003). To meet this standard, the State must demonstrate that the

management of discovery and the admissibility of evidence under an which the disclosure was ordered.” We review a trial court’s decision on the portions of the records that were relevant and responsive to the purpose for was an ‘essential need’ for disclosure of the records, and to release only those

criminal case). the circumstances in which the State may appeal to the supreme court in a having reviewed the records produced to date that portions of the records may p. 4 Similarly, in this case, the trial court stated that it “assume[d] without

alleged.” Id that are likely to arise from the injuries caused by the medical negligence and that she did not waive the privilege simply by claiming generic damages 4 arguing that the court’s order violated “the psychotherapist-patient privilege, The plaintiff brought an interlocutory appeal of the trial court’s ruling,

611. determining whether or not privileged materials should be disclosed.” Id. at discovery of privileged material” as “[r]elevance alone is not the standard for

. We found that the “trial court applied an incorrect standard for

In Desclos

Relying upon Desclos v. Southern New Hampshire Medical Center psychotherapist-patient privilege.” Id. (quotation and brackets omitted). claim for loss of enjoyment of life and pain and suffering, she has waived the omitted). The trial court further ruled that “by the nature of the plaintiff’s calculated to lead to the discovery of admissible evidence.” Id. (quotation were “clearly relevant to the issue of damages . . . and are reasonably trial court granted the defendants access to the records, ruling that the records “relevant to her damage and liability claims.” Desclos, 153 N.H. at 609. The psychological records prior to the date of her injury, arguing they were

, the defendants sought all of the plaintiff’s psychiatric and

despite their civil character. See id. RSA 329:26. Therefore, as we have in the past, we will follow our prior cases, former physician-patient privilege law), superseded in part on other grounds by criminal matters. See State v. Elwell, 132 N.H. 599, 603 (1989) (discussing any indication that the legislature intended to distinguish between civil and Desclos involved civil litigation, neither RSA 329:26 nor RSA 330-A:32 contains result, she suffered irreversible quadriplegia. Desclos, 153 N.H. at 609. While defendant failed to recognize her symptoms of a spinal cord injury and, as a involved a medical negligence action in which the plaintiff alleged that the standard in determining whether to disclose the records at issue. Desclos N.H. 607 (2006), the State argues that the trial court applied the wrong

privilege and former therapist-patient privilege). (physician-patient privilege); Kupchun, 117 N.H. at 415 (physician-patient Jury Subpoena (Medical Records of Payne), 150 N.H. 436, 444, 448 (2004) between physicians and patients and therapists and patients. See In re Grand safeguard the statutory protections afforded the confidential relationship (quotation omitted). For these reasons, we have continually sought to psychiatrist must have his patient’s confidence or he cannot help him.” Id. some degree of effectiveness by a doctor whom the patient did not trust, but a 152 N.H. 658, 664 (2005). “Many physical ailments might be treated with behind the usual physician-patient privilege.” In the Matter of Berg & Berg, the public policy behind this privilege “may be even more compelling than that privileged material at issue. See p. 5 assistance of counsel cases, it is the holder of the privilege who puts otherwise defendant’s proposition is misplaced, however, because in civil or ineffective privilege when a defendant claims ineffective assistance of counsel.” The context, just as [we] ha[ve] recognized the implied waiver of the attorney-client [the] physician/psychotherapist-patient privilege applies in the criminal The defendant urges us to “recognize that a similar implied waiver of I. Implied Waiver

the case.” Id confidential communications at issue by injecting the privileged material into privilege. We do not believe the legislature intended such a result. Cf. id. the State’s accusation against the defendant, we would effectively nullify the to conclude that an alleged victim impliedly waives her privilege based upon his medical condition at issue simply by proclaiming his innocence”). Were we Cf. Elwell, 132 N.H. at 607 (holding that “[a] criminal defendant does not put issue simply because the State elects to proceed with a criminal prosecution. case). We decline to hold that an alleged victim’s medical records are put at Petition of Dean, 142 N.H. 889, 890-91 (1998) (ineffective assistance of counsel

We have held that a party waives the privilege “by putting the

613 (emphasis added). in turn. the privileged material to prove the elements of the case.” Desclos pierced as it pertains to these particular records.” We address each argument, 153 N.H. at impliedly waive the privilege by bringing a cause of action that requires use of mentally defective) any privilege should be considered impliedly waived or agreement . . . that the holder are “actually required for resolution of the issue (i.e., whether the victim was of a psychotherapist-patient privilege will 607 (physician-patient privilege). Indeed, in the civil context, “[t]here is broad related to K.H.’s stay at the New Hampshire Hospital and the records at issue . at 612 (psychotherapist-patient privilege); Elwell, 132 N.H. at

As we stated in Desclos

contends that since he has already received certain discharge summaries disclose all of the records at issue in this case. In contrast, the defendant court review, neither of these means provided the court with the discretion to N.H. at 611 (citation omitted). The State argues that in the absence of prior the privilege; or (2) the court orders a piercing of the privilege.” Desclos, 153 disclosure of privileged information may occur: (1) the court finds a waiver of

153 N.H. at p. 6 611; Super. Ct. R. 35(b)(1). if any, are an element of the pending charge.” This was error. See Desclos, well be relevant to the State and Defense since the victim’s mental limitations, 6

DALIANIS, C.J., and DUGGAN, CONBOY and LYNN, JJ., concurred.

Reversed and remanded

burden under Gagne Here, the State does not dispute that the defendant has met this initial

which, if any, of the records should be disclosed. See Gagne, 13 p. 6 6 N.H at 106. disclosure of the information concerned is considered essential.” Kupchun the trial court to conduct an in camera review of the records to ascertain found that “the privileges in question are not absolute and must yield when abrogated. Its failure to do so was error. Accordingly, we remand the case for disclosed because the circumstances warranted piercing the privilege. We have camera review to determine whether the privileges at issue should be

id. review and a determination of whether the privilege should be abrogated. See that the defendant has to meet before the trial court undertakes an in camera “reasonable probability” showing also establishes an initial, minimum standard process interests in obtaining potentially exculpatory information. See id. The victim’s privacy interests in the confidential records and the defendant’s due This initial showing of reasonable probability is necessary to protect both the Desclos, 153 N.H. at p. 6 616 (quoting State v. Gagne, 136 N.H. 101, 105 (1992)). The defendant next argues that the records were properly ordered information that is material and relevant to’ the party’s defense or claim.” privilege must first ‘establish a reasonable probability that the records contain contained in the privileged records, however, the party seeking to pierce the (quotation omitted). “Before establishing essential need for the information In re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 222 (2010) another source and that there is a compelling justification for its disclosure.” records must prove both that the targeted information is unavailable from 117 N.H. at 415. “To establish essential need, the party seeking the privileged