Petition for Writ of Mandamus Denied in =
Part and=20
Granted in Part and =
Opinion=20
filed December 17, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00937-CV
____________
IN RE=20
J.H.S., Jr., as next friend of J.S.S. (a minor),=20
Relator
ORIGINAL=20
PROCEEDING
WRIT OF MANDAMUS
M E M O R=20
A N D U M O P I N I O N
Relator=20
J.H.S., Jr., as next friend of J.S.S., a minor, has filed a =
petition for=20
writ of mandamus in this court. See Tex. =
Gov=3Dt Code=20
Ann. '22.221=20
(Vernon 2004); see also Tex. R. App. P. 52. In the =
petition,=20
relator requests that we direct respondent, the Honorable Robert =
J. Kern,=20
presiding judge of the 387th District Court of Fort Bend County, =
Texas, to=20
vacate his October 31, 2007 order denying relator=3Ds motion=20
for protection of certain medical, psychological, and =
psychiatric=20
records of J.S.S., a minor who is not party to the underlying =
suit.=20
Relator=20
has not shown that the trial court abused its discretion in =
denying the=20
motion for protection of J.S.S.=3Ds=20
psychological and psychiatric records. We therefore deny the =
petition insofar as it seeks relief from provisions of the order =
(1)=20
granting a psychiatric expert restricted access to =
J.S.S.=3Ds=20
psychological and psychiatric records for purposes of conducting a =
custody=20
evaluation of J.F.J., who is J.S.S.=3Ds=20
half-brother, in the underlying divorce action between =
J.S.S.=3Ds and=20
J.F.J.=3Ds mother=20
and J.F.J.=3Ds father;=20
(2) requiring real party in interest N.P.J., mother of J.S.S., to =
execute=20
necessary releases to permit the expert=3Ds=20
restricted access to J.S.S.=3Ds=20
psychological and psychiatric records; and (3) requiring the =
expert (a) to=20
segregate J.S.S.=3Ds records=20
from any other records in his possession related to the parties in =
the=20
underlying suit; (b) not to make reference to the contents of=20
J.S.S.=3Ds records=20
in his written report; and (c) to submit his report in camera to =
the=20
court, from which it will not be released without further order =
and only=20
after provision of notice to relator.
The record=20
contains no evidence to support a conclusion that any party to the =
underlying action relies on J.S.S.=3Ds medical=20
condition as part of that party=3Ds claim or=20
defense. See Tex. R. Evid. Ann. 509(e)(4) (Vernon =
2003);=20
R.K. v. Ramirez, 887 S.W.2d 836, 842B43 (Tex.=20
1994). Although the order is tailored to restrict disclosure =
of the=20
medical records only to the expert who will conduct the custody =
evaluation=20
and to limit the expert=3Ds =20
use of information from those records in his report, which will be =
submitted only in camera to the court, there has been no threshold =
showing=20
to justify even restricted access to J.S.S.=3Ds medical=20
records. Therefore, we conclude that the trial court abused =
its=20
discretion in denying relator=3Ds motion=20
for protection of J.S.S.=3Ds medical=20
records, and that relator does not have an adequate remedy by=20
appeal. Walker v. Packer, 827 S.W.2d 833, =
837B39, 843=20
(Tex. 1992) (orig. proceeding). Accordingly, we =
conditionally grant=20
relator=3Ds petition=20
for writ of mandamus insofar as it seeks relief from the =
order=3Ds=20
provisions (1) granting the expert access to J.S.S.=3Ds medical=20
records and (2) requiring real party in interest N.P.J. to execute =
releases to permit the expert=3Ds access=20
to J.S.S.=3Ds medical=20
records. We are confident the trial judge will vacate such =
portions=20
of the October 31, 2007 order; the writ will issue only if the =
trial judge=20
fails to do so.
We hereby=20
lift our order of November 7, 2007 staying the trial =
court=3Ds October=20
31, 2007 order.
PER=20
CURIAM
Petition Denied in =
Part and=20
Granted in Part and Memorandum Opinion filed December 17, =
2007.
Panel=20
consists of Chief Justice Hedges and Justices Anderson and=20
Frost.
We recognize that psychiatric =
records are=20
medical records. For purposes of this opinion, however, =
Amedical records@ shall encompass those records from any=20
non-psychiatric medical professional who has consulted with or =
treated=20
J.S.S. for any medical issue other than a mental or emotional =
condition or=20
disorder. The records of medical professionals who have =
consulted=20
with or treated J.S.S. for a mental or emotional condition or =
disorder are=20
covered by the term Apsychiatric records.@ The records of non-medical =
professionals=20
who have consulted with or treated J.S.S. for a mental or =
emotional=20
condition or disorder are covered by the term Apsychological records.@ |