(4) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party’s claim or defense. Parkan first argues that this case falls under subsection (3) because Jarvis is seeking to “collect on a claim for medical services rendered to the patient.” Jarvis’s claim against Parkan is one for personal injuries, however. Her claim is not directed toward her surgeon, nor is the surgeon attempting to collect for medical services. Therefore, the exception described in subsection (3) does not apply. Cf. In re Collins, 286 S.W.3d 911, 916 (Tex. 2009) (orig. proceeding) (information relevant to medical malpractice claim not subject to privilege).
With regard to the exception described in subsection (4), Parkan argues that billing records, unlike medical records, are not privileged under Rule 509. The supreme court analyzed the patient-litigant exception to the physician-patient privilege in R.K. v. Ramirez. The court held that this exception applies when: (1) the records are relevant to the condition at issue in the litigation, and (2) the condition contained in the records is relied upon as a “part” of a party’s claim or defense. 887 S.W.2d at 840. Whether a plaintiff’s condition is a “part” of a claim is determined from the pleadings, without reference to the evidence that is allegedly privileged. R.K., 887 S.W.2d at 843 n. 7; In re Doe, 22 S.W.3d 601, 609 (Tex. App.—Austin 2000, orig. proceeding). To be a “part” of a claim or defense, the condition itself must be a fact that alone carries legal significance under the substantive law. R.K., 887 S.W.2d at 842–43 (“Because relevance is defined so broadly, virtually any litigant could plead some claim or defense to which a patient’s condition could arguably be relevant and the privilege would cease to exist. We reject this alternative as well.”). The supreme court observed that “[c]ommunications and records should not be subject to discovery if the patient’s condition is merely an evidentiary or intermediate issue of fact, rather than an ‘ultimate’ issue of a claim or defense, or if the condition is merely tangential to a claim rather than ‘central’ to it.” Id. at 842.
Parkan cites no authority distinguishing between medical billing records and medical records for purposes of application of the physician-patient privilege. At least one of our sister courts of appeals has included medical billing records within the privilege as contemplated by Rule of Evidence 509. See In re Dolezal, 970 S.W.2d 650, 653 (Tex. App.—Corpus Christi 1998, orig. proceeding) (concluding billing records were privileged under Rule 509). We need not decide, however, whether all medical billing records are covered by the privilege. Because the medical bills at issue here record the identity, diagnosis, evaluation, or treatment of Jarvis, they are covered by the privilege. Tex. R. Evid. 509(c)(2).
Billing records are also covered by HIPAA, upon which Jarvis relies. HIPAA defines the term “health information” as including any information that “relates to the . . . past, present, or future payment for the provision of health care to an individual.” 42 U.S.C. § 1320d(4). HIPAA permits protected health information to be revealed in response to a discovery request if the parties agree to a protective order and have presented it to the court, or if they have asked the court for a protective order (as Jarvis did). 45 C.F.R. § 164.512(e)(1). The HIPAA provisions do not create a privilege against production or admission of evidence; they merely create a procedure for obtaining protected medical records in litigation. Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 925-926 (7th Cir. 2004); see also Fed. R. Evid. 501. Thus, HIPAA does not alter our privilege analysis.
In deciding whether the subsection (4) exception to the privilege applies, we must look to Jarvis’s pleadings to determine whether billing records for surgeries other than her hand surgery are a “part” of her claim or Parkan’s defense. Jarvis’s pleadings are limited to allegations of negligence, negligence per se, and strict liability with regard to the dog bite she received on her hand. Jarvis has stated that she is only seeking recovery for damage to her hand. Applying the R.K. standards to this case, billing records for plastic surgery other than surgery performed on Jarvis’s injured hand are not a “part” of either Jarvis’s claims or Parkan’s defense. While Parkan alleges a need for the bills to “sort out” discrepancies, that is an evidentiary issue that can be explored in other ways, not an ultimate issue of a claim or defense. Accordingly, the exception to the privilege does not apply to those bills. See R.K., 887 S.W.2d at 842.
For these reasons, we hold that the billing records for procedures unrelated to Jarvis’s hand injury are protected by the physician-patient privilege and are not discoverable under the exceptions to that privilege raised by Parkan. The trial court clearly abused its discretion by ordering their production in response to items 1 and 2 of the January deposition notice and items 4 through 9 of the November deposition notice.
II. The collateral source rule does not bar discovery of the BCBS contracts.
Parkan also seeks discovery from BCBS, Dr. Polsen, South Shore, and S.T.A.E.C. of their contracts and communications relating to payment for the services rendered to Jarvis. The particular requests are quoted above and appear in items 3 through 5 of the January deposition notice and 1 through 3 of the November deposition notice. Parkan argues this information is calculated to lead to the discovery of relevant evidence because the contracts are necessary to aid in determining what expenses were reasonable and whether the medical providers accepted payments for less than amounts billed based on contracts with insurance carriers.
Jarvis argues these requests run afoul of the “collateral source rule.” This argument does not comport with Jarvis’s motions to quash below, which only argued the collateral source rule in response to the January notice, and even there argued only that producing the contracts and correspondence “for treatment unrelated to the dog bite incident at issue” would violate the collateral source rule. Yet even if Jarvis had preserved her argument regarding the collateral source rule with respect to both depositions and all contracts (whether related or unrelated), we hold that the trial court did not clearly abuse its discretion in rejecting that argument.
Section 41.0105 of the Texas Civil Practice and Remedies Code provides that “recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” The supreme court has determined that section 41.0105 limits recovery, and consequently the evidence at trial, to expenses that the provider has a legal right to be paid. Haygood v. De Escabedo, 356 S.W.3d 390, 391 (Tex. 2012). The court specifically determined that “the collateral source rule continues to apply to such expenses, and the jury should not be told that they will be covered in whole or in part by insurance. Nor should the jury be told that a health care provider adjusted its charges because of insurance.” Id. at 400.
In Haygood, the court further discussed the collateral source rule and section 41.0105 in determining whether a plaintiff could recover full “list” prices for medical services in cases when a health care provider has agreed to accept payment of lower reduced rates by virtue of contracts with insurance carriers and Medicare and Medicaid regulations. The court first made clear that Texas law allows a plaintiff to recover “reasonable medical expenses.” Determining what expenses are “reasonable” in a given case, however, has become difficult given the modern practice of requiring medical providers—by virtue of contracts with insurance carriers or applicable regulations—to accept payments of far less than the amounts billed. The court held that limiting a plaintiff to recovery of these reduced fees did not violate the collateral source rule. Id. at 397–98.
In reaching its decision, the court noted that the purpose of the collateral source rule is to prevent a windfall to the defendant when the plaintiff’s costs are paid by a third party for the benefit of the plaintiff. See id. at 395. The court first specifically noted that the reduced rates were either determined to be “reasonable” under Medicare or other programs or were reached by agreement between willing providers and willing insurers. Id. at 394–95. Thus, the defendant was still required to pay for reasonable expenses and received no windfall. On the other hand, the court stated that allowing a plaintiff to recover for elevated expenses that a provider could not legally recover would create a windfall to the plaintiff. See id. at 395. The court concluded that “the common-law collateral source rule does not allow recovery as damages of medical expenses a health care provider is not entitled to charge.” Id. at 395.
Parkan contends that “whether Blue Cross Blue Shield is a ‘collateral source’ is of no consequence to the determination of the discovery issues in this case.” Parkan further argues that “the Texas Supreme Court in Haygood made it clear that insurance payments, adjustments and contracts affecting the legal right of the healthcare provider to be paid are the very issues that are relevant at trial.” We agree. Parkan is entitled to discovery of the insurance contracts between BCBS and Jarvis’s healthcare providers to aid in determining whether the providers are required to accept payments of less than the amounts billed. Jarvis has failed to meet her burden to show that production of the insurance contracts will not lead to information relevant to Parkan’s defense.
Jarvis further contends that Parkan seeks “to interpret the contract between the Healthcare Providers and BCBS, find that the Healthcare Providers are in breach and then reduce the paid/incurred amount based upon their findings.” Jarvis argues that Parkan seeks to bring a breach of contract claim against either BCBS or Jarvis’s healthcare providers and argues that Parkan has failed to show privity of contract or that he is a third-party beneficiary.
Parkan is entitled to discovery of the insurance contracts to aid in determining whether the providers are required to accept payments of less than the amounts billed. The record does not reflect that Parkan is attempting to bring a breach of contract action, nor is he required to do so to be entitled to discovery of the insurance contracts. Accordingly, Jarvis has not shown that the trial court clearly abused its discretion in ordering their production.
III. The requests for health insurance contracts are not overly broad.
Jarvis next contends that “[t]he requests in this case are overbroad as to the time period and relevancy to the matter at hand.” Discovery is limited to matters relevant to the case. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex.1995) (orig. proceeding); see also Tex. R. Civ. P. 192 cmt. 1 (“While the scope of discovery is quite broad, it is nevertheless confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute.”). A party’s requests must show a reasonable expectation of obtaining information that will aid in the resolution of the dispute. In re CSX Corp., 124 S.W.3d at 152. Therefore, discovery requests must be reasonably tailored to include only matters relevant to the case. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding) (per curiam). “A reasonably tailored discovery request is not overbroad merely because it may include some information of doubtful relevance, ” however. Id.
The Texas Supreme Court has rejected on overbreadth grounds discovery requests that encompass time periods, products, or activities beyond those at issue in the case. See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (in case involving plaintiff’s abduction from defendant’s parking lot, request for description of all criminal conduct at the location during the preceding seven years held overbroad); Dillard Dep’t Stores, 909 S.W.2d at 492 (in case of false arrest at Houston department store, request for every claims file or incident report from every store in the company’s chain involving false arrest, civil rights violations, or use of excessive force held overbroad); Texaco, 898 S.W.2d at 814–15 (in case involving exposure to toxic chemicals that allegedly caused asbestos-related disease, request for “all documents written by [defendant's safety director] that concern[ed] safety, toxicology, and industrial hygiene, epidemiology, fire protection and training” held overbroad); General Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex. 1983) (in case involving allegedly defective fuel filler necks in particular model truck, requests concerning fuel filler necks in every vehicle ever made by General Motors held overbroad).
Jarvis alleges that the requests for BCBS to produce all managed care contracts and other specified items relating to services provided to Jarvis by Dr. Polsen, as well as all contracts for South Shore and S.T.A.E.C. to accept BCBS payments as full payment for services rendered to Jarvis, are not limited in time or scope and are overly broad on their face. These requests are quoted above and appear in items 1 through 3 of the November deposition notice.[1]
We disagree with Jarvis’s argument that these requests are overbroad. As we explained above, Parkan is entitled to discovery of the insurance contracts between BCBS and Jarvis’s healthcare providers to aid in determining whether the providers are required to accept payments of less than the amounts billed. Moreover, the requests do not include contracts other than those at issue. Rather, they are specifically limited to contracts that relate to “services provided to Joan Jarvis” by Dr. Polsen, South Shore, and S.T.A.E.C. In her mandamus petition, Jarvis does not explain how she believes the requests should be further limited.
For these reasons, Jarvis has not met her burden to show the trial court clearly abused its discretion in ordering production of the health insurance contracts. Parkan’s stated need for the health insurance contracts certainly does not rise to the level of a “fishing expedition.” Parkan is entitled to review the documents to determine whether Jarvis’s healthcare providers accepted payments of less than the amounts billed. In that regard, the information may lead to evidence relevant to Parkan’s defense. Therefore, we hold the trial court did not clearly abuse its discretion in concluding that the requests in items 1 through 3 of the November deposition notice are not overly broad.
IV. Jarvis’s arguments that the depositions on written questions are duplicative or burdensome were not raised in the trial court.
Finally, Jarvis contends that the January deposition notice to Dr. Polsen, South Shore, and S.T.A.E.C. is duplicative because it includes questions that have already been answered by these healthcare providers. According to Jarvis, the only distinguishing feature is the request for the health insurance contracts and added questions regarding insurance billing.
In her motion for protective order filed in the trial court, Jarvis argued that the deposition sought privileged material, that it was overbroad and not reasonably limited in time or scope, and that copies of the health insurance contracts and billings were not discoverable because their production would violate the collateral source rule. Jarvis did not request a protective order from the trial court on the grounds that the January deposition was duplicative or burdensome.
Equity generally is not served by issuing an extraordinary writ against a trial court judge on a ground that was never presented in the trial court and that the trial judge thus had no opportunity to address. See In re Le, 335 S.W.3d 808, 814 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding). Accordingly, a request for action by the trial court and a refusal of that request is generally a predicate to mandamus relief. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding). The requirement of a predicate request and adverse ruling is excused, however, when such a request would have been futile and the trial court’s refusal little more than a formality. In re Brown, 277 S.W.3d 474, 482–83 (Tex. App.— Houston [14th Dist.] 2009, orig. proceeding). To determine whether a request would have been futile, appellate courts examine whether the request would have added anything for the trial court’s consideration. Id.
If Jarvis had sought protection from the trial court based on the duplicative nature of the requests, the court could have narrowed the requests to include only those matters that were not potentially duplicative, thus obviating the need to grant mandamus relief. Voicing these complaints in the trial court would have drawn the court’s attention to the issue and added relevant information for its consideration. We see no indication that it would have been futile for Jarvis to have raised the duplicative nature of the requests in the trial court. Because Jarvis did not satisfy the requirement of a predicate request and refusal by the trial court, she is not entitled to mandamus relief on her duplication argument. See Le, 335 S.W.3d at 815 (relator not entitled to mandamus relief because she failed to raise deficiency in sanctions order with the trial court).
Conclusion
For the foregoing reasons, we conditionally grant partial mandamus relief and direct the trial court to vacate the portions of its order that require production, in response to items 1 and 2 of the January deposition and items 4 through 9 of the November deposition, of billing records related to procedures other than those directly related to Jarvis’s hand injury. We are confident the trial court will act in accordance with this opinion. The writ will issue only if the trial court fails to do so.
With regard to the other arguments raised by Jarvis, we deny her petition for writ of mandamus. We lift the stay ordered by this Court on March 18, 2013.
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