431 S.W.3d 129
Tex. App.2013Background
- Joan E. Jarvis sued Michael Parkan for damages after a dog bite to her right hand; she had multiple surgeries (initial hospital surgery and later plastic surgery by Dr. Polsen) and is insured by Anthem Blue Cross Blue Shield (BCBS).
- Parkan served subpoenas and deposition-by-written-questions seeking broad medical billing records, payments, and managed-care/insurance contracts relating to Jarvis’s care (including records and contracts for other procedures Jarvis had).
- Jarvis moved to quash/protect, arguing overbreadth, physician–patient privilege, HIPAA, and collateral-source concerns; the trial court overruled the motions and ordered production.
- Jarvis petitioned this Court for a writ of mandamus to vacate the trial court’s order compelling production.
- The court reviewed whether (1) billing records for procedures unrelated to the injured hand are privileged, (2) insurance contracts and communications are discoverable, (3) requests are overbroad, and (4) certain depositions are duplicative/burdensome.
Issues
| Issue | Jarvis’s Argument | Parkan’s Argument | Held |
|---|---|---|---|
| Are billing records for procedures unrelated to the claimed injury protected by physician–patient privilege? | Such billing records are privileged and not discoverable. | Billing records are not medical records; exceptions to privilege (collect/medicare exception and patient-litigant exception) permit production. | Billing records that reveal identity/diagnosis/treatment for unrelated procedures are privileged; trial court abused its discretion ordering their production. |
| Are BCBS managed-care contracts and communications discoverable despite collateral-source concerns? | Production violates collateral-source rule and is irrelevant or improper. | Contracts are relevant to what providers were legally entitled to collect; inform what was actually paid/accepted and whether billed amounts are recoverable. | Contracts and communications related to services provided to Jarvis are discoverable; collateral-source rule and §41.0105 do not bar discovery of contracts. |
| Are the requests for insurance contracts and communications overbroad in time/scope? | Requests are not reasonably tailored and are overbroad. | Requests are limited to contracts/communications relating to services provided to Jarvis and are relevant to determining amounts paid/accepted. | Requests were reasonably tailored to services provided to Jarvis and not overbroad; trial court did not clearly abuse discretion. |
| Were Jarvis’s duplicative/burdensome objections preserved below such that mandamus relief is warranted? | The January written depositions are duplicative and unduly burdensome. | (Respondent opposed motion to quash; argued relevance and need for contracts/billing). | Jarvis failed to raise duplicative/burdensome objection in trial court; mandamus not available on that unpreserved ground. |
Key Cases Cited
- R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) (defines patient‑litigant exception to physician–patient privilege and when records become a “part” of a claim)
- In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (mandamus standard for discovery: abuse of discretion and inadequate appellate remedy)
- In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998) (scope of discovery lies largely within trial court discretion)
- Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491 (Tex. 1995) (ordering privileged or overly broad discovery is abuse of discretion)
- In re Am. Optical Corp., 988 S.W.2d 711 (Tex. 1998) (requests must be reasonably tailored and not overbroad)
- Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2012) (limiting recoverable medical expenses to amounts actually paid or incurred; discussion of collateral‑source rule)
- In re Collins, 286 S.W.3d 911 (Tex. 2009) (distinguishes applicability of privilege exceptions in medical malpractice context)