*1 аnd INDEPENDENT CLEGHORN, MICHAEL GUARD 1, Appellants, NEVADA, ASSOCIATION OF LOCAL HESS and WACKENHUT SERVICES, F. HARRIE Respondents. INC.,
No. 22426
June
Thorndal, White, Maupin Armstrong & and Earle W. Las Vegas, Respondents.
OPINION Court, Rose,
theBy C. J.:
FACTS Services, Respondent (Wackenhut) Inc. is under contract with the United (DOE) States Department Energy provide security services at the Nevada Test Site and related nuclear weapons facilities in Nevada. Appellant Michael Cleghorn (Cleghorn) is a security inspeсtor for Wackenhut and 24, has been a Wackenhut employee since May 1982. Under a Wackenhut, contract with (Dr. Harrie respondent Hess), Hess examines, tests, licensed psychologist, and evaluates Wackenhut and employees for applicants employment to determine their psychological for employment. The psychological test- ing conducted in accоrdance with the terms of a collective bargaining agreement between Wackenhut and appellant Indepen- Nevada, dent Guard Association of (IGAN), Local 1 and as part of a medical and psychological suitability testing program DOE Human Reliability Personnel Program (PAP). Assurance As a condition of employment security personnel, the DOE requires Wackenhut only those emplоy persons who meet PAP medical standards.
Wackenhut referred Cleghorn to Dr. Hess for psychological 6, July on again and (pre-employment),
testing May and records of his copies Cleghorn requested 1990. Hess and Wackenhut to NRS 629.061.1 results pursuant of his copies psycholog repeated requests Cleghorn’s refused Thereafter, an action Cleghorn brought ical test results. relief, the test results seеking to obtain declaratory injunctive attempted testing. of his 29, 1990, the court. On November action to federal to remove the remanded of Nevada for the District District Court United States 16, 1991, January court. On state district case back to the who of its members on behalf to intervene IGAN was allowed had undergone psychological who were Wackenhut summary judgment motions for All filed parties Hess. testing by Hess and Wack- granted court court. The district in the district the other and denied judgment, summary motion for enhut’s motions.
LEGAL DISCUSSION court erred whether the district on review is The sole issue does not entitle that NRS 629.061 concluding *3 results. NRS psychological of their IGAN to obtain copies health Each provider “1. pertinent part: provides, 629.061 available patient health care records of a make the cаre shall (a) representative or by: patient inspection physical and IGAN Cleghorn . . .” patient. from the written authorization the test receive copies entitles them to argue NRS 629.061 following by done Hess for testing of the psychological results care as defined in (1) of health Hess is a provider reasons: are 629.031;2 patients members (2) and the IGAN Cleghorn examina- services for seeking medical are they persons because provides, pertinent part: 1NRS629.061 make care records provider 1. Each of health care shall the health patient physical inspection by: of a available for (a) representative or a with written authorization from patient; (b) attorney general grand jury investigator An or a investi- 422.570, inclusive; gating alleged violation of NRS 422.540 to (c) Any represеntative investigator licensing authorized of a state by during any investigation board the course of authorized law. provides: 2NRS 629.031 chapter physician licensed under means a of health care” “Provider nurse, NRS, dentist, optician, dispensing licensed 630A or 633 of podiatrist, psychol- licensed registered physical therapist, optometrist, family chiropractor, doctor of marriage therаpist, ogist, and licensed form, laboratory or techni- any director Oriental medicine cian, any employer such hospital a licensed pharmacist or person. treatment; (3) are medical requested and the records tion or records as defined in NRS 629.021.3 not a provider that Hess is Wackenhut assert and Dr. Hess Cleghorn assert that They further the statute. care under
health pursuant of Hess wеre not patients members the IGAN and them, care to health provide did not because Hess NRS 629.061 Hess, the examina- and treatment from they expect did and Dr. Hess of Wackenhut. the sole benefit were for tions to an inde- are similar the examinations contend that Wackenhut during to litigation prior performed medical examination pendent case no physician-patient in either disсovery because place. or takes contemplated is clearly “provider is Dr. Hess licensed psychologist, As a sought by The information NRS 629.031.
health care” under by records produced and reports IGAN are written Cleghorn examina- to Dr. Hess’ relating information containing and thus are including Cleghorn, employees, tion of Wackenhut there Although as defined in NRS 629.021. care records” “heath 629, a in Chapter patient provided is no definition of or is who consults person as “a in our evidence statutes defined diagnosis a doctor or interviewed examined been similarly has 49.215(3). The word patient treatment.” NRS for examination medical services seeking “a person defined as (1986). The Facts 2d 395 Jur. See 46 Am. treatment.” Proof of and exam- undeniably interviewed were Wackenhut determine their Hess in order to ined that Dr. Hess assert Hess and Wackenhut Dr. employment. members, but IGAN and the evaluated examined and distinction, if to them. medical treatment did not provide psy- exists, evaluation between a one indeed treatment, linchpin determinative hardly chological it be. would have Hess and deal generally by Dr. Hess relied on *4 The cases argue that liability. the tort do not they because “patients” are not examined employees in con- medical treatment reasonably expect they receive nor do determi- This examination. their employer-required nection with provides as follows: 3NRS 629.021 notes, orders, reports, written means “Health care records” by produced or a record received X-rays other written or photographs, him, care, by emplоyed which contains any person heath or provider of examination, diagnosis history, relating to the medical information patient. treatment of
548 case, malpractice duty nation is crucial to a medical where the care, and hence is defined whether a liability, by doctor-patient Schaeffer, exists. See Felton v. 713 relationship Cal.Rptr. 279 1991); (Cal. Keene v. 138 3 (Cal.Ct.App. Wiggins, Cal.Rptr. However, 1977). germane it is not to the issue of Ct.App. whether should have access to infor by employer. mation that has been collected about them their Furthermore, to in the instant case that the were say employees they because did not receive treatment is to patients split tested, examined, hairs. The were and evaluated by The definition of utilized other psychologist. “patient” juris- considering liability necessarily dictions when tort is not appro- case, in the and a more definition priate instant liberal harmony would be in with the intent behind legislative the legislature the enactment of NRS 629.061. intent of is the State, factor in Mtr. controlling statutory interpretation. Dep’t of McGuire, 182, 184, Vehicles v. 108 Nev. 827 P.2d 822 face, (1992). language When the of a statute is clear its its language. intention must be deduced from such Id. The statute is clearly provide, prevent, intended to rather than access to medi- persons, protecting cal records while at same time specific patient’s rights: only privacy patient patient’s repre- sentative, the attorney general grand jury, or an authorized investigator licensing may of the state board representative access the medical records. NRS See 629.061. Nevada Legislature procedures set forth detailed and for the requirements retention, copying, patient’s of a medical records inspection to facilitate the of that information. See NRS obtaining 629.011- 629.081. A narrow of who is a would defeat interpretation We therefore conclude purpose statute. and the IGAN members are patients 629.061.
Dr. Hess and Wackenhut further assert that the psychological Wackenhut, examinations were conducted for the sole benefit of thus, no arose between Dr. physician-patient relationship Hess and the examinees. When an required, as examination, condition of to a employment, submit that examination creates a between the examining examinee, and the at least to the еxtent physician tests Walker, (5th 1990) conducted. Green v. F.2d 296 Cir. U.S., law); Louisiana see also (interpreting Daly 946 F.2d (9th 1991) law); Cir. (interpreting Washington Betesh v. States, (D.D.C. 1974) United F.Supp. (interpreting
549
(Miss.
Helton,
called were the ones who Wackenhut are employees is that the here examined, have tested, correspondingly and should and evaluated Interestingly, comprehen- testing. to the results of that access Wackenhut between bargaining agreement collective sive IGAN, testing which the psychological the terms of provide of the results does not disclosure prohibit the employees, that the employees One would therefore assume employees. to information. right have a to this examined, tested, and evaluated are employees Hess, if they “psy- to determine are licensed psychologist, Dr. Yet, being subjected after employment. suitable” chologically examination, are then denied themselves employees to this in the Adverse information testing. to the rеsults that access could, to the employees, files unbeknownst personnel employees’ future, had having without the materially employees affect their See, e.g., results. purported to challenge an opportunity States, 492, (3rd 1974). F.2d 1269 Cir. Quinones United to own allows employers access to their files Denying employees To impunity. their secret information on gather legislation have enacted many this states injustice, prevent type to examine their employers permit employees private requiring files.4 own personnel vehemently
Dr. Hess and Wackenhut assert that the release an imminent to the employees’ pose danger test results will the DOE do not Explosives Safety Program entire Nuclear but any convincing authority statistics or for this assertion. provide 629.061, behind Hess Discussing legislative intent that there are no revealingly state consumer here, Wackenhut carrying impor- concerns out protection It as if to we can government. say tant mission on behalf We “Big trust Brother” to look after our best interest. have found experience government subject from functions best when Information should be withheld from citi- scrutiny. reasonable merited, zens who are it when such аs when by only truly affected security Showing a national reason is established. an employee 4See, (West 1991); Rev. Ann. tit. e.g., Me. Stat. Cal.Lab. Code 1198.5 § (West (West & 1992); 423.501 1978 Comp. Mich. Laws Ann. § § 1992); (1991); Ann. tit. Stat. Pa. Stat. Supp. § § Or. Rev. 652.750 Employee Duffy, Privacy Balancing (1991); Jan v. Disclosure: see also D. (1982). Employer Rights, Emp. L.J. 594 Rel. surely compromise will not test result
his or her security. national test- undergo who conclude that employees
We “patients” are as a condition of ing *6 concluding the distriсt court erred in and that of NRS 629.061 and IGAN to obtain Cleghorn not entitle the statute does that carefully We have consid- test results. of the copies that they on and we conclude appeal ered all other contentions light further addressed in of our lack merit or need not be either the of the district we reverse decision Accordingly, disposition. court with instructions remand this case to thе district court and members, of and the IGAN judgment Cleghorn to enter favor of their test results they copies as are entitled to under NRS 629.061.
Springer Shearing, JJ., concur. Young, J.,
Steffen, J., joins, dissenting: whom with I dissent. respectfully meaning is the of the term key appeal to this case Hess, clearly a licensed is Although psychologist,
“patient.” 629.031, it is equally of health care” under NRS “provider a with Dr. Hess was that of a Cleghorn’s relationship clear that . “pаtient.” the issue in but fail to place proper perspective,
Appellants it, of found in Web- citing “patient” the definition recognize Dictionary English the ster’s Third New International of (1968) as “a client for medical services Language Unabridged — dentist).” neither a “client” (as Cleghorn of a was physician in his with Dr. nor a seeker of “medical services” client, was Dr. Hess’ and the contrary, Hess. To the cоnstituted a service examination of Cleghorn of purpose for Wackenhut. the required by performed the to Cleghorn examination was to determine Wackenhut. security as a inspector continue his employment services,” involved “medical To the extent that the examination employment incidental to the purpose qualifica- it was purely tion. of a as “a “patient” reference to the definition
Appellants’
for examination or treatment” is
seeking medical services
person
Am. Jur.
of their
See 46
Facts
insupportive
position.
also
Proof of
2d,
(1986).
did not
to Dr. Hess
Cleghorn
report
seeking
or treatment. He was
medical services for either examination
for psychological testing requisite
directed to
to Dr. Hess
report
In
did
continued
with Wackenhut.
nо sense
of medical services from Dr. Hess
any type
seek
of a physician
a
the services
seeks out
sense
examination, care, or treatment.
diagnostic
1990),
Walker,
(5th Cir.
denied,
(Pa. 1989),
that no
562
826
where the court ruled
A.2d
results
a
physician
where
physician-patient
for a
to
but
or treat an
diagnose
applicant
examine
employed
also,
States,
insurance
United
451
See
Hoesl v.
policy.
life
1978),
(9th
(N.D.Cal.
Cir. himself in connection with others to advise by undertake either or examines”); Wiggins, or the whom he Keene people treat cases, 1977) (in malpractice medical (Cal.Ct.App. Cal.Rрtr. the
no exists between doctor-patient relationship the the for the benefit of doctor who examines employer). was to Ervin in that analogous Cleghorn
The instant case Wackenhut, to his in order employer, examined at the direction of Ervin, the required his In examination was maintain employment. coverage. in to Ervin for by company qualify the insurance order by health care performed involve an examination Both cases than the examinee for at the of other providers request parties the the only incidently related to health of commercial purposes examinee, sense, any In neither case was the person examined. neither was
a of the examiner. In case the examiner’s “patient” or of examinee. In neither case was the by on behalf the paid fee in the performed primary in furtherance of a interest examination health of the examinee. physical mental or also to the definition majority “patient” turns as for the conclu- support code a measure of
Nevada’s evidence suggest that status with Dr. Hess. I Cleghorn enjoyed sion 49.215(3) contrary that a conclusion is warranted. NRS defines as “a purposes doctor-patient privilege of the “patient” a or is examined or interviewed doctor person by who consults diagnosis Cleghorn report treatment.” did not either The sole diagnosis purpose to Dr. Hess for treatment. by conducted Dr. Hess was to determine examination based suitability for his test results. Cleghom’s employment upon revealed a Hess unsuitability, If test results condition Dr. was treat the causes of upon diagnose underlying not called Finally, Cleghorn itself excludes privilege condition. providing from the definition that “[a] any has a to refuse to disclose and to other privilege prevent disclosing among from confidential him- person communications self, participating diagnosis his doctor or who are in the persons doctor, or treatment under the directiоn of the members including family.” Clearly, of the had no patient’s 49.225. right to disclosure of the test results to prevent who had Dr. Hess to in the perform instructed examination first place.
Moreover, disagree majority’s I with the that the conclusion by results of examination Dr. Hess “health Cleghorn’s constitute care as defined in posi records” NRS 629.021.1 The majority’s by tion is undermined the mere that the employ fact results of an ment does not reflect A aspect of “care.” health care record contains information generated by health examinations, care provider regarding history, diag noses, Indeed, “patient.” and treatment of his or her entirety of the Nevada Chapter 629 Revised Statutes is constituted under the title of “Healing Generally.” Arts Nothing pertaining to Cleghorn’s examination Dr. Hess related healing. only Hess to determine sought Cleghorn’s mental status suit ability for Wackenhut. required Finally, the majority voices the concern that employers may gather “secret” information their about employees and use it *8 if, against them with impunity. I that suggest other situations than at employment will where termination may occur for any reason, reason or no an has reason to believe that test results are concocted or concealed order to create a pretense termination, contract or tort law will provide an effective avenue of relief for the aggrieved employee. I therefore question the propriety of this court placing expansive gloss what provides 1NRS 629.021 any follows: ‘“Health care records’ means notes, orders, reports, X-rays written photographs, or other record written care, produced provider received or any of health person employed him, relating which contains information to the history, examina tion, diagnosis patient.” or treatment of the contingency to meet a that clear in order to be a statute appears according could be resolved not occur and which may may Legislature event. If the of torts contracts law who conduct pre-employment that employers determines give required should be testing retention examinees, be enacted would may a statute results to the a policy. effectuate such above, I dissent. expressed respectfully the reasons For Individually LOPEZ, and as ERIC LOPEZ GINA LOPEZ, Minor, ad of ERWIN Guardian litem COMPANY, Appellants, Respondent. v. MERIT INSURANCE No. 853 P.2d
June Massi, Ltd., Cap, Vegas, and Allen A. Las Albert D.
Appellants. Richard Las Sipan, Vegas, Austin & Burnett and C.
Lyles, Respondent.