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Heaphy v. Metcalf - 6/18/2020

Arizona Court of Appeals Division Two holds that a plaintiff does not waive privilege as to medical records just because her life expectancy may be relevant to her damages theory.


A man died in the care of a nursing facility.  His widow brought a wrongful death action against the facility.  She sought future damages, including loss of companionship.

The facility sought discovery of the widow’s medical records on the ground that her life expectancy was relevant to her damages theory.  She refused, invoking physician-patient privilege.  The trial court ordered her to disclose certain medical records, reasoning that she had impliedly waived her privilege by claiming future damages.

But in a special action, the Court of Appeals reversed.  The Court reasoned that, under Arizona law, a patient impliedly waives physician-patient privilege if she “places a particular medical condition at issue.”  Bain v. Superior Court, 148 Ariz. 331, 334 (1986).  Here, although the widow’s life expectancy was arguably relevant to her damages theory in a general sense, she had not placed any particular medical condition at issue.  So she had not waived her privilege.

The Court noted that, if the widow were to affirmatively present evidence of her own life expectancy, that might waive the privilege.  The Court expressed no opinion on that issue.

Presiding Judge Eppich authored the opinion.  Judges Espinosa and Eckerstrom concurred.

Posted by: Josh Whitaker

Posted On: 7/1/2020