That’s the question that many lawyers and district court judges will be asking themselves after the Iowa Supreme Court’s decision today in Fagen v. Iddings, where no opinion received a majority of votes and Justice Zager concurred “in result only.”
A patient’s medical records are privileged under Iowa law, but the patient waives that privilege if he files a lawsuit and puts his medical condition at issue. The plaintiff in this case, Cameron Fagen, filed a lawsuit against his college dormmates for injuries that Fagen suffered when he fell to the ground while wrapped in carpet. (Fagen’s dormmates did the wrapping.) Because Fagen alleged that he suffers from mental pain and mental disability as a result of the accident, the defendants asked Fagen for his mental health records. Fagen resisted, saying that his allegations of mental pain and disability were just “garden variety” emotional distress, and thus he had not waived the patient-physician privilege by bringing the lawsuit.
The district court disagreed, ruling that there is no “garden-variety” exception under Iowa law, and thus the defendants could have access to the medical records. Fagen asked the Iowa Supreme Court to review that decision on interlocutory appeal, and the Supreme Court granted that request.
This morning, the Iowa Supreme Court issued its decision. At first glance, it looks like Fagen won. But that’s not clear, and it’s less clear what the law is going forward.
Justice Wiggins, joined by Justices Hecht and Appel, reversed the district court’s decision (which required Fagen to sign the patient waiver). The three justices didn’t adopt the garden-variety exception, but instead adopted a new “protocol,” under which a party does not waive the patient-physician privilege unless the person requesting the records makes a “showing that he or she has a reasonable basis to believe the specific records are likely to contain information relevant to an element or factor of the claim or defense of the person or of any party claiming through or under the privilege.” The defendants had not made that showing in the district court (because the standard didn’t exist at the time), so Justices Wiggins, Hecht, and Appel voted to send the case back for a redo. The concluding paragraph of Justice Wiggins’s opinion states in full:
We reverse the district court’s order requiring Fagen to sign a patient’s waiver for his mental health records concerning his anger-management counseling and remand this case to the district court to follow the protocol contained in this opinion pertaining to the release of a party’s mental health records in a civil action.
Three other justices–Chief Justice Cady and Justices Waterman and Mansfield–dissented. They disagree with the new protocol and don’t think it should be applied in this case. The dissenters, through an opinion by Justice Mansfield, accused the plurality of “disregarding the question we are supposed to answer”–i.e., whether there is a garden-variety exception under Iowa law–“and instead answering a question nobody asked us to answer.” This new protocol, Justice Mansfield wrote, “may force a defendant to spend time on extra depositions trying to find indirect evidence of the plaintiff’s mental health condition ” and “may cause trial dates to be postponed because the district court will be unable to rule on whether mental health records should be produced until fact discovery is largely complete—i.e., on the eve of trial.” Because Fagen pleaded that he suffered damages for mental anguish and mental disability, they voted to affirm the district court.
That left Justice Zager. He concurred with the first three justices (Wiggins, Hecht, and Appel), but “in result only. ” And he didn’t say anything else. He didn’t explain what part of Justice Wiggins’s opinion he disagreed with. And he didn’t say what test he would apply.
So three justices voted in favor of using Justice Wiggins’s protocol; three justices voted against using Justice Wiggins’s protocol; and one justice concurred in result only. What’s the law?
That depends, it seems, on what the “result” is–since that’s what Justice Zager is concurring in. At its highest level, the result is that the court is reversing the district court’s decision and remanding the case. But what happens on remand? What test is the district court supposed to apply? If Justice Zager isn’t signing onto Justice Wiggins’s protocol, then that protocol didn’t get a majority vote. It’s not the law. Of course, neither is the dissent’s position, and we don’t know what Justice Zager thinks, so we have no majority rule. Just a 3-3 split.
At the same time, the “result”–as framed by Justice Wiggins–was to reverse and “remand this case to the district court to follow the protocol contained in this opinion pertaining to the release of a party’s mental health records.” But if that’s the result that Justice Zager was concurring in–meaning that Justice Zager is on board with Justice Wiggins’s new test–then what part of the opinion does he disagree with?
Those are the questions that district court judges will have to answer in dozens of cases to come. It’ll be interesting to see if the answers are consistent.
[Disclosure: I submitted an amicus brief in this case on behalf of the Iowa Association of Business and Industry and the Iowa Defense Counsel. The brief is here.]