State v. TrevizoState v. Trevizo
Plaintiff-Appellant,
v.
ALEXEE J. TREVIZO,
Defendant-Appellee.
INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Jane Shuler Gray, District Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Michael J. Thomas, Assistant Solicitor General
Albuquerque, NM
for Appellant
Gary C. Mitchell, PC
Gary C. Mitchell
Ruidoso, NM
Law Office of Amber Fayerberg
Amber Fayerberg
Ngunguru, New Zealand
Kulsoom Ijaz
Karen Thompson
New York, NY
for Appellee
The Law Office of Ryan J. Villa
Katherine Loewe
Richelle Anderson
Albuquerque, NM
University of California, Irvine School of Law
Ji Seon Song
Irvine, CA
for Amici Curiae Ji Seon Song, American Civil Liberties Union of New Mexico & National Police Accountability Project
Dodd Law Office, LLC
Christopher A. Dodd
Albuquerque, NM
Lawyers for Good Government
Khadijah Silver
Washington, DC
for Amicus Curiae American College of Obstetricians and Gynecologists
VIGIL, Justice.
{1} This case requires us to clarify the contours of our physician-patient privilege, set forth in
I. BACKGROUND
A. Facts
{2} Defendant was a nineteen-year-old high school student on the occasion of the incidents leading to charges against her. On January 27, 2023, she went to the Artesia General Hospital Emergency Department (ED) in Artesia, New Mexico, with her mother around midnight seeking treatment for severe lower back pain. She told Dr. Heather M. Vaskas, the ED doctor, and nursing staff that her pain began after cheerleading practice earlier that afternoon. Asked if she was pregnant, Defendant responded she was not, stating she had vaginal bleeding and that she was currently “on her period.”
{4} At 12:28 a.m., Dr. Vaskas ordered a serum pregnancy test, a standard practice for someone of Defendant‘s age with her symptoms. The serum was collected at 12:30 a.m., and the result showing Defendant was pregnant was reported to Dr. Vaskas and Defendant‘s nurse at 12:51 a.m. Notwithstanding the positive pregnancy test, Defendant‘s nurse continued administering the IV medications to Defendant. Defendant continuously received ketorolac, ondansetron, cyclobenzaprine, and
{5} Defendant was in the locked bathroom for nineteen minutes. While Defendant was in the bathroom Defendant‘s mother and nursing staff checked on Defendant but did not enter the bathroom. From 1:53 to 1:56 a.m., Dr. Vaskas and nursing staff again checked on Defendant without entering the bathroom, but they were ready to open and enter the bathroom with a key. Defendant gave birth to a newborn she described as not moving, crying, or breathing.
{7} After being called to clean up blood from the bathroom and hallway, ED cleaning staff found the newborn in a trashcan inside the bathroom at 2:27 a.m. Dr. Vaskas pronounced the newborn dead at 2:28 a.m. Autopsy lab results later showed that the deceased newborn had free morphine in his heart blood.
{8} Realizing that Defendant was not only vaginally bleeding but had just given birth and could die from a postpartum hemorrhage, Dr. Vaskas contacted Lovelace Regional Medical Center (Lovelace) in Roswell, New Mexico, to arrange an urgent transfer. Dr. Vaskas did not reexamine Defendant or discuss Defendant‘s condition with her until law enforcement personnel were present as witnesses.
{9} Law enforcement was notified immediately, and two police officers with the Artesia Police Department arrived at 2:38 a.m. The charge nurse was the first to speak to them and immediately told them Defendant “wouldn‘t tell us she was
{10} Just after 2:41 a.m., the two uniformed, armed male police officers, the male charge nurse, and Dr. Vaskas entered Defendant‘s room. Defendant‘s mother was in the room as her designated caregiver and emergency contact. Dr. Vaskas positioned herself at Defendant‘s bedside, while the officers and the charge nurse blocked the doorway. Dr. Vaskas immediately confronted Defendant with the statement, “We discovered a dead baby in the bathroom,” and Defendant responded, apparently not only to Dr. Vaskas, but also to the police “I‘m sorry, it came out of me; I didn‘t know what to do.” Defendant added that she held the baby and there was “‘no movement, no breathing, nothing.‘” One of the officers wrote in his report that, after making this statement, Defendant was detained, that she was not free to leave, and that he stood
{11} Following this confrontation, Dr. Vaskas for the first time told Defendant that she had a medical emergency and asked Defendant‘s mother for consent to be airlifted to the nearest regional hospital because Defendant “just had a baby and I don‘t know if [Defendant] delivered the placenta. She‘s bleeding significantly.” The officers remained in Defendant‘s room even as Defendant received another vaginal examination. Defendant was airlifted to Lovelace almost two hours after Dr. Vaskas determined that she could “die” from postpartum hemorrhage.
B. Motion to Suppress
{12} Defendant was charged with one count of first-degree murder or, in the alternative, intentional abuse of a child resulting in death, and one count of tampering with evidence. Defendant filed a motion in the district court: (1) to suppress all statements made to her medical providers on the basis that her physician-patient privilege under
{14} In its analysis, the district court explained that the statement made by Defendant‘s own doctor that a dead baby was discovered in the bathroom was made “in a highly confrontational manner” and “by any reasonable interpretation is shocking, confrontational, and designed to elicit a response.” Further, the district court explained, by failing to advise Defendant of her right to confidentiality under the physician-patient privilege, by failing to invoke the privilege on her behalf, and by entering Defendant‘s room only when accompanied by the police, Dr. Vaskas acted as an agent of law enforcement: “[R]efusing, or at the least, failing, to give shocking information to her patient except in the presence of law enforcement made Dr. Vaskas an agent of law enforcement.” Furthermore, the district court found, Defendant was surrounded by law enforcement officers, Defendant was not free to
{15} The State appeals directly to this Court.
{16} On appeal, the State argues (1) that Defendant had no physician-patient privilege because there is an exception to the privilege for reports that doctors are required by law to make to law enforcement, (2) that any privilege was waived by the presence of the police officers and Defendant‘s mother during Defendant‘s communications with her doctor, and (3) that there was no Miranda violation. We reject the State‘s arguments related to the physician-patient privilege. Because we hold that Defendant‘s statements were privileged, it is unnecessary for us to address the Miranda question.
{17} Our review of the law of privileges and waiver is de novo. Allen v. LeMaster, 2012-NMSC-001, ¶ 11, 267 P.3d 806 (stating that a trial court‘s construction of the laws of privileges and waiver is a question of law subject to de novo review); see Pacheco v. Hudson, 2018-NMSC-022, ¶ 24, 415 P.3d 505 (stating that whether specific communications are privileged is a mixed question of fact and law subject to de novo review).
{18} The district court ordered suppression of all evidence obtained by the State in violation of the physician-patient privilege. The physician-patient privilege is set forth in
A patient has a privilege to refuse to disclose, or to prevent any other person from disclosing, a confidential communication made for the purpose of diagnosis or treatment of the patient‘s physical, mental, or emotional condition, including drug addiction, between the patient and the patient‘s physician, psychotherapist, or state or nationally licensed mental-health therapist.
The physician-patient privilege applies by its own terms to a “confidential communication,” which is defined as a communication “made privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication.”
{19} Of course, the physician-patient privilege is not absolute. State v. Gonzales, 1996-NMCA-026, ¶ 14, 121 N.M. 421, 912 P.2d 297. Physicians are subject to statutory reporting obligations under
{20} As a preliminary matter, the State does not meaningfully dispute that Defendant presented herself to the emergency room as a patient seeking a diagnosis and treatment from Dr. Vaskas and the ED staff for severe lower back pain and that those facts support a finding that their communications advancing Defendant‘s care fall within the privilege. Instead, the State‘s arguments focus on the effect of Section
A. Section 32A-4-3(A) (2021) and the Physician-Patient Privilege
{21} The State contends Defendant has no physician-patient privilege as a matter of law. Specifically, the State argues that the mandatory reporting requirement of
{22} The State‘s argument requires us to construe a statute and a court rule. “We review issues of statutory interpretation de novo. Our primary goal when interpreting statutes is to further legislative intent. Although the first guide to statutory interpretation is the actual wording of the statute, we have recognized that where the meaning of the facial language of a statute is in doubt, the plain language approach may not lead to a correct interpretation of true legislative intent.” State v. Strauch, 2015-NMSC-009, ¶ 13, 345 P.3d 317 (internal quotation marks and citations omitted). Further: “In interpreting statutory language as well as in much of the other work courts are called on to perform, it is necessary to think thoughts and not words. We have repeatedly cautioned that despite the beguiling simplicity of parsing the
{23} Our analysis commences with the mandatory reporting requirement of
{24} The State then refers us to {25} The district court ruled, “The hospital had an obligation to notify law enforcement that a crime might have occurred but is not entitled to abrogate the physician-patient privilege.” As we now explain, we agree with the district court. We construe the statute and rule together so that they operate harmoniously. A patient may prevent disclosure of private communications with a physician “made for the purpose of diagnosis or treatment of the patient‘s . . . condition,” {27} Whether Defendant voluntarily waived her physician-patient privilege by speaking to Dr. Vaskas in the presence of the police officers and her mother presents an issue we review de novo. Allen, 2012-NMSC-001, ¶ 11 (stating that a trial court‘s construction of the law of privileges and waiver are questions of law subject to de novo review). The State‘s argument urges us to adopt a per se rule that whenever a third person is present who is not necessary for care or treatment while a patient communicates with their doctor, a waiver of confidentiality takes place, regardless of who the person is or of the circumstances. We reject that argument as inconsistent with caselaw and the policy interests underlying the physician-patient privilege. {28} {29} Accordingly, our courts have required a finding that an alleged waiver was voluntary in order to be valid. See Lucero, 2023-NMCA-035, ¶¶ 24-30. Our Court of Appeals in Lucero grappled with the same question before us in this case: “Under what circumstances does the presence of a third party, able to overhear a communication between a physician and a patient, negate the privilege?” Id. at ¶ 24. The Lucero Court emphasized that any analysis of the physician-patient privilege must be anchored in the interests served by the privilege—“protecting a patient‘s privacy and autonomy in relating highly sensitive, personal matters concerning their physical or mental condition to a medical provider for purposes of diagnosis or treatment.” See id. at ¶¶ 28-30. Through the lens of patient autonomy, Lucero seems to conclude that mere awareness that a third party is present is insufficient, on its own, to waive the privilege. See id. Rather, Lucero also requires a showing of conduct “sufficient to constitute voluntarily consent to or acquiescence in the disclosure of [their] communications.” Id. at ¶ 30 (emphasis added). Although Lucero does not reference {31} In support of the requirement of voluntary conduct, Lucero relied upon In re Termination of Parental Rights of Sherry C. & John M., 1991-NMCA-137, ¶ 25, 113 N.M. 201, 824 P.2d 341, “for the proposition that a patient who has actual knowledge that the communication will be disclosed, and voluntarily participates in the communication with that knowledge, has consented to or acquiesced in the disclosure of their physician-patient communication.” Lucero, 2023-NMCA-035, ¶ 29 (emphasis added). In re Sherry C. adds yet another layer to voluntariness under {33} Here, there is no question Defendant knew of the presence of both the officers and her mother, so we focus on the second and third factors of this analysis. The facts are disturbing in many respects. Defendant was a nineteen-year-old high school student who went to the emergency room around midnight because she was suffering from severe back pain which she rated at ten out of ten, with ten being the most severe. Asked if she was pregnant, she said she was not, adding she was bleeding and “on her period.” Within five minutes after being admitted to the emergency room, Defendant was given pain medications and a powerful muscle relaxant, {34} The only medical response to the positive pregnancy test and knowledge that Defendant was bleeding was to continue giving Defendant the IV fluids containing the powerful muscle relaxant and morphine. The IV was later disconnected only because Defendant said she urgently had to have a bowel movement—a possible indication that Defendant‘s cervix was fully dilated and she was moving into the delivery phase. Defendant was in the locked bathroom for nineteen minutes, and she gave birth to an infant she reported as not moving, crying, or breathing. She placed the infant inside a trashcan in the bathroom and returned to her bed. {35} Five minutes after she returned to her bed, Defendant‘s profuse vaginal bleeding prompted Dr. Vaskas to order a transvaginal ultrasound. Dr. Vaskas then performed a pelvic exam, finding a “significant amount of blood,” “multiple extremely large clots,” and Defendant‘s “wide open cervix.” Dr. Vaskas did not inform Defendant of these serious, significant findings or advise her of her positive pregnancy test. When the deceased infant was discovered after the pelvic exam, Dr. {36} When the two officers arrived, the charge nurse told them Defendant “wouldn‘t tell us she was pregnant” and “killed the kid.” Dr. Vaskas joined the conversation, telling the officers she had not yet told Defendant “what was going on” or that Defendant needed an urgent medical transfer. Dr. Vaskas told the officers, “So officers, so, first thing, I need to make sure the mother is stable. I don‘t know if she delivered a placenta, she is bleeding a lot.” Incredibly, Dr. Vaskas asked if “one of [them wanted] to be part of the conversation” with Defendant and invited the officers into Defendant‘s room. Police presence in Defendant‘s room at that time was not required for any reason, medical or otherwise. The officers accepted Dr. Vaskas‘s invitation. {37} It was just after 2:41 a.m. when the two uniformed, armed police officers entered Defendant‘s room with Dr. Vaskas and the charge nurse. The police officers and charge nurse blocked the doorway while Dr. Vaskas went to Defendant‘s bedside and immediately confronted Defendant with the statement: “We discovered {38} We now proceed to determine whether the second and third requirements for a valid waiver of the physician-patient privilege were satisfied. {39} We first consider whether the Defendant had the mental and physical capacity to waive the privilege. In this instance, there is a serious question whether Defendant had the mental and physical capacity to waive the privilege. She was experiencing excruciating back pain. Shortly after midnight, she received powerful pain medication, a muscle relaxant, and morphine. Even after medical staff learned Defendant was pregnant, they continued those medications and stopped only when she said she urgently needed a bowel movement. Although the amount of morphine she received is unknown, it was sufficient to cross the placental barrier: the autopsy showed morphine in the infant‘s heart blood. Defendant also lost a significant amount of blood, expelled multiple large clots, and had a “wide open cervix.” Dr. Vaskas concluded that she could die from a postpartum hemorrhage. Under all the circumstances, giving birth alone in the locked bathroom was surely shocking, frightening, and stressful to Defendant. This was Defendant‘s condition when Defendant‘s doctor, the charge nurse, and two armed, uniformed police officers confronted her at 2:41 a.m. We would ordinarily remand for an evidentiary hearing {40} And given the absence of capacity to waive and the circumstances surrounding her disclosure, the third prong of the test also supports Defendant‘s claim that her physician-patient privilege remains intact. Indeed, the totality of the circumstances indicate that any waiver by Defendant was not voluntary. In the hours before, Defendant presented at the emergency room in excruciating pain, was administered numerous medications, including narcotics, at unknown doses, she gave birth, and she suffered ongoing life-threatening blood loss. Despite her unresolved medical crisis, Dr. Vaskas, without authorization, ambushed Defendant, bringing with her two-armed officers who stood in the doorway of her hospital room, and disclosed her personal medical information to all persons in the room without warning. Defendant was not given the opportunity to exclude anyone from the room before Dr. Vaskas discussed her condition in the presence of others. Considering this sudden unauthorized disclosure, coupled with Defendant‘s compromised medical condition, under the totality of the circumstances, we cannot conclude that Defendant‘s waiver of her physician-patient privilege was voluntary. {41} We affirm the order of the district court suppressing all evidence obtained by the State in violation of the physician-patient privilege. {42} IT IS SO ORDERED. MICHAEL E. VIGIL, Justice WE CONCUR: JULIE J. VARGAS, Chief Justice C. SHANNON BACON, Justice DAVID K. THOMSON, Justice BRIANA H. ZAMORA, JusticeB. Waiver of the Physician-Patient Privilege
Notes
Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a school employee; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:
(1) a local law enforcement agency;
(2) the department; or
(3) a tribal law enforcement or social services agency for any Indian child residing in Indian country.
The recipient of a report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities or child care facilities.