Jerry L. And Susan Ashenfelter Vs. Amy S. Mulligan

IN THE SUPREME COURT OF IOWA
No. 08–2075
Filed December 30, 2010
JERRY L. and SUSAN ASHENFELTER,
Appellees,
vs.
AMY S. MULLIGAN,
Appellant.
Appeal from the Iowa District Court for Plymouth County,
Jeffrey A. Neary, Judge.
On interlocutory appeal, appellant contends district court
improperly ordered her to disclose medical and mental health records to
appellees. DISTRICT COURT ORDER REVERSED.
Jennifer H. Cerutti, Iowa Legal Aid, Sioux City, for appellant.
Elizabeth A. Rosenbaum, Sioux City, for appellees.

-- 1 of 14 --

2
STREIT, Justice.
Amy Mulligan appeals a district court order allowing her parents,
Jerry and Susan Ashenfelter, to review her medical and mental health
records for purposes of their petition seeking grandparent visitation with
Amy’s son, A.M. This case has become moot because the ability to seek
court-ordered grandparent visitation is now limited to grandparents
whose own child has died. Because the issue of mental and medical
health records in the grandparent visitation context is likely to reoccur,
however, we choose to reach the issue. Amy has a statutory and
constitutional right to privacy in her medical and mental health records,
and the Ashenfelters failed to override that right with a countervailing
interest. The district court order is reversed.
I. Background Facts and Prior Proceedings.
Amy Mulligan and Alan Mulligan1 are parents to six-year-old A.M.
Jerry and Susan Ashenfelter are Amy’s parents and A.M.’s grandparents.
Amy and Alan separated in December 2007 and had a pending
dissolution action when the Ashenfelters sought visitation. Soon after
Amy and Alan’s separation, Amy decided it was in A.M.’s best interest
not to see his grandparents (her parents), the Ashenfelters. The
Ashenfelters filed a petition seeking grandparent visitation pursuant to
Iowa Code section 600C.1 (Supp. 2007).
The Ashenfelters served discovery requests on Amy seeking (1) a
complete copy of Amy’s 2008 commitment court file, including any and
all reports, records, etc., submitted by Dr. Dean and/or Siouxland
Regional Medical Center and Dr. Patra; (2) a complete copy of Amy’s
2007 commitment court file, including any and all reports, records, etc.,
1For clarity, we refer to Amy Mulligan and Alan Mulligan by their first names.

-- 2 of 14 --

3
submitted by Dr. Dean, Dr. Patra, and Mercy Medical Center;2 (3) a
complete copy of Amy’s 2007 medical records for Mercy Medical Center;
(4) a complete copy of Amy’s 2008 medical records from Siouxland
Regional Medical Center; (5) a complete copy of any and all records from
Plains Area Mental Health regarding Amy from January 1, 2004, to
present time; (6) a complete copy of any and all records regarding Amy
from Jackson Recovery Center from January 1, 2004, to present time;
(7) a complete copy of any and all records regarding Amy from Dr. Dean’s
office from January 1, 2004, to present time; and (8) any and all notes,
records, or reports regarding Amy from counseling sessions at the
Council on Sexual Assault and Domestic Violence (CSADV) and with
Cathy VanMaanen from January 1, 2004, to the present time.
The Ashenfelters also presented interrogatories asking Amy to
“[l]ist all physicians and medical providers and mental health providers
and facilities who have provided care to you since January 1, 2004, by
providing” the name of the provider, phone number and address of the
provider, dates seen, reasons they saw Amy, and the last time Amy was
treated by the provider. The interrogatories sought Amy’s current mental
health diagnosis and all medications currently prescribed to Amy,
including the name, dosage, and frequency.
Amy moved for a protective order. The district court held that
because the Ashenfelters must prove Amy is unfit to make a decision
regarding grandparent visitation in order to obtain visitation, Amy’s
mental health is at issue. The court held that because Amy’s mental
health is at issue, the statutory physician-patient privilege in Iowa Code
section 622.10 does not apply. The district court ordered production of
2The parties agree there is no such court file because Amy was voluntarily
hospitalized.

-- 3 of 14 --

4
all documents requested by the Ashenfelters except for the request
relating to documents from the CSADV. The court also ordered Amy to
answer all interrogatories.
We granted an application for interlocutory appeal and an
emergency stay. We reverse.
II. Scope of Review.
Discovery decisions are typically reviewed for abuse of discretion.
State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). However, this court
reviews the interpretation of Iowa Code section 622.10 for correction of
errors at law. Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996).
Constitutional claims are reviewed de novo. Santi v. Santi, 633 N.W.2d
312, 316 (Iowa 2001).
III. Merits.
A. Mootness. Amy filed a motion to dismiss based on grounds of
mootness. We agree the case is moot. The Ashenfelters sought
grandparent visitation with Amy’s child, A.M., on August 21, 2008,
under the then-existing grandparent visitation statute, Iowa Code section
600C.1. The Ashenfelters are Amy Mulligan’s parents. Under section
600C.1 as it existed in 2008, grandparents could petition for
grandparent visitation, provided they met the requirements of the
statute: (1) the grandparents have a substantial relationship with the
child, (2) the parent is unfit to make the decision regarding visitation,
and (3) visitation is in the best interest of the child.
After the Ashenfelters’s filed their petition, the Iowa legislature
struck section 600C.1 in its entirety and replaced it. 2010 Iowa Acts ch.
1193, § 130. The new grandparent visitation section took effect July 1,
2010. The current section 600C.1 provides the right to petition for
grandparent visitation “when the parent of the minor child, who is the

-- 4 of 14 --

5
child of the grandparent or the grandchild of the great-grandparent, is
deceased.” Iowa Code § 600C.1(1). Amy moved to dismiss because the
Ashenfelters are her own parents, and because she is not deceased, the
Ashenfelters do not have standing under the current section 600C.1 to
seek visitation.
Application of the current section 600C.1 is straightforward and
precludes the Ashenfelters’ petition. “As a rule, every case must be
determined on the law as it stands at the time judgment is pronounced.”
Windsor v. City of Des Moines, 110 Iowa 175, 179, 81 N.W. 476, 477
(1900). Although the “legislature cannot impair the obligation of
contracts, nor by subsequent legislation disturb vested rights,” here, as
in Windsor, the parties’ rights have not vested because there has been no
final decree. Id.
This is a suit in equity, and is triable de novo in this court.
Until final decree is passed, there is no vested right to be
disturbed, and the case must be determined on the law as it
now stands. These are elementary propositions . . . .
Id. at 180, 81 N.W. at 477.
Amy also notes the legislative change to the grandparent visitation
statute is a substantial change in circumstances which would allow
modification of a grandparent visitation award. See Spiker v. Spiker, 708
N.W.2d 347, 358–59 (Iowa 2006) (holding ruling that grandparent
visitation statute was unconstitutional entitled parent to seek
modification of grandparent visitation award); cf. In re Marriage of
Feustel, 467 N.W.2d 261, 265 (Iowa 1991) (holding a change in federal
income tax law regarding claiming children as dependents constituted
substantial change in circumstances). Although Spiker and Feustal both
dealt with awards that were already entered, their reasoning suggests the
Ashenfelters’ petition should be dismissed. As this court noted in Spiker,

-- 5 of 14 --

6
the grandparents “ ‘have no power to require of the court continuing
enforcement of rights the [grandparent visitation] statute no longer
gives.’ ” Spiker, 708 N.W.2d at 358 (alteration in original) (quoting Sys.
Fed’n No. 91, Ry. Emps.’ Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 652, 81
S. Ct. 368, 373, 5 L. Ed. 2d 349, 355 (1961)). Although the Ashenfelters
had a statutory right to petition for grandparent visitation in 2008, they
no longer have such a right in 2010. Because the Ashenfelters cannot
require “enforcement of rights the grandparent visitation statute no
longer gives,” id., it follows that the Ashenfelters cannot be allowed to
pursue a petition the statute no longer permits.
Although the case is now moot, we may choose to reach the basic
underlying question after considering the following criteria: “ ‘(1) the
public or private nature of the question presented, (2) desirability of an
authoritative adjudication for future guidance of public officials, and
(3) likelihood of future recurrence of the same or similar problem.’ ”
Rush v. Ray, 332 N.W.2d 325, 326 (Iowa 1983) (quoting Bd. of Dirs. of
Ind. Sch. Dist. v. Green, 259 Iowa 1260, 1265, 147 N.W.2d 854, 856
(1967)). Here, we believe individual privacy interests in medical and
mental health records presents an issue of great public interest. Also, we
foresee this issue arising in the future, in the context of grandparent
visitation as well as other civil contexts. Therefore, we proceed to
address the issue.
B. Protection of Amy’s Medical and Mental Health Records
under Iowa Code Section 622.10. Amy argues her medical records are
protected under Iowa Code section 622.10. Section 622.10 provides:
A practicing . . . counselor, physician, . . . [or] mental health
professional, . . . who obtains information by reason of the
person’s employment . . . shall not be allowed, in giving
testimony, to disclose any confidential communication

-- 6 of 14 --

7
properly entrusted to the person in the person’s professional
capacity, and necessary and proper to enable the person to
discharge the functions of the person’s office according to
the usual course of practice or discipline.
Iowa Code § 622.10(1).
1. Applicability of section 622.10. Amy argues her medical and
mental health records are protected from discovery by the privilege found
in section 622.10. The Ashenfelters argue section 622.10 does not
protect the records and information they seek because compliance with
the discovery requests does not require disclosure “in giving testimony.”
See id.
In Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349 (1958), this
court held a medical record could not be admitted into evidence because
it was properly considered a privileged “communication” under Iowa
Code section 622.10. Newman, 249 Iowa at 843–44, 89 N.W.2d at 354–
55. Therefore, any attempt by the Ashenfelters to introduce the medical
records they seek would invoke consideration of section 622.10. This
raises the question, however, of whether the protections of section
622.10 apply to discovery of such medical records prior to introduction
at trial.
Some of this court’s previous cases suggest medical or mental
health records sought during discovery are not protected by section
622.10, although these cases either did not directly address the issue or
are easily distinguished. In Chidester v. Needles, 353 N.W.2d 849 (Iowa
1984), the court held the phrase “in giving testimony” meant section
622.10 did not protect a patient’s documents sought by a county
attorney conducting an investigation into Medicaid fraud. Chidester, 353
N.W.2d at 852. The court emphasized that the patient’s doctor was not
being required to testify “indirectly” because the documents were sought

-- 7 of 14 --

8
only for an investigation, they would remain confidential, and they could
not be used as testimony for trial. Id. at 852–53. Similarly, in McMaster
v. Iowa Board of Psychology Examiners, 509 N.W.2d 754 (Iowa 1993), the
court held that section 622.10 did not protect medical records sought by
the Iowa Board of Psychology Examiners as part of an investigation of a
practicing psychologist. McMaster, 509 N.W.2d at 757. The court held
that the board’s subpoena did not fall under the provision of section
622.10 protecting “testimony.” Id. Unlike the state investigations at
issue in Chidester and McMaster, the Ashenfelters sought Amy’s records
for pending civil litigation that does not involve the state or a licensing
board as a party.
In Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353
(Iowa 1986), we stated: “Testimony is a declaration by a witness in court
or during a deposition.” Roosevelt Hotel, 394 N.W.2d at 355. This
statement could be interpreted to suggest “testimony” as used in section
622.10 does not include medical records. However, Roosevelt Hotel was
concerned with ex parte interviews—as compared with in-court verbal
testimony—and did not address medical records. See id. at 354.
Additionally, in Newman, where medical records were sought to be
introduced at trial, the court held they were protected by section 622.10.
Newman, 249 Iowa at 843–44, 89 N.W.2d at 354–55.
This court’s more recent cases suggest the privilege found in
section 622.10 does extend to documents sought during discovery. State
v. Eldrenkamp, 541 N.W.2d 877 (Iowa 1995), reiterated that information
found in medical records contains “privileged communications under
section 622.10 ‘to the same extent that the knowledge and information of
the examining or treating physician is privileged.’ ” Eldrenkamp, 541
N.W.2d at 881 (quoting Newman, 249 Iowa at 844, 89 N.W.2d at 355). In

-- 8 of 14 --

9
Eldrenkamp, the issue surrounded a blood sample taken in Illinois, and
because Illinois had a statute specifically excluding the physician-patient
privilege in homicide cases, the court held the records were discoverable.
Id.
The next year, in Chung, the court directly addressed a request for
medical records during discovery. Chung, 548 N.W.2d at 148. The court
held the “statutory rule of testimonial exclusion has been extended by
rule to the discovery of confidential communications.” Id. at 149. The
court cited to Iowa Rule of Civil Procedure 1.503—then rule 122(a)—
which prohibits discovery of privileged materials. Id. Essentially, the
court held that because medical records are privileged under Iowa Code
section 622.10 when introduced as evidence, they are privileged matters
protected from discovery under rule 1.503. Id.
In State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), the court again
reiterated that the statutory protection of privileged information extends
to medical records, noting “the privilege would be virtually meaningless if
it prohibited testimony but did not protect the very records upon which
such testimony would be based.” Heemstra, 721 N.W.2d at 560. The
court also explained that “[u]nder rule of civil procedure 1.503(1),
privileged information is generally not even discoverable.” Id. Despite
this discussion, Heemstra did allow for limited disclosure of medical
records in an in camera review. Id. at 563. Heemstra was a criminal
case in which the defendant sought medical records to help prove his
defense of self-defense. Id. at 559. This court held that “privileges must
be tempered by defendants’ constitutional right to present a defense.” Id.
at 562. Similarly, this court recently provided a protocol for evaluating
whether medical records will be submitted for attorney review in a

-- 9 of 14 --

10
criminal case based on constitutional considerations. See State v.
Cashen, 789 N.W.2d 400, 408–10 (Iowa 2010).
The medical records sought by the Ashenfelters are protected from
use as testimony and therefore from introduction at trial pursuant to
Iowa Code section 622.10. See Eldrenkamp, 541 N.W.2d at 881 (holding
medical records are privileged “ ‘to the same extent that the knowledge
and information of the examining or treating physician is privileged.’ ”
(quoting Newman, 249 Iowa at 844, 89 N.W.2d at 355)). This is a civil
case. Iowa Rule of Civil Procedure 1.503 prohibits discovery of privileged
materials. Therefore, because the medical records are privileged
materials under section 622.10, they are not discoverable under rule
1.503. Chung, 548 N.W.2d at 149.
2. Patient-litigant exception under Iowa Code section 622.10.
Section 622.10 provides an exception to the privilege in certain
circumstances when a patient is also a litigant. The privilege does not
apply:
in a civil action in which the condition of the person in
whose favor the prohibition is made is an element or factor of
the claim or defense of the person or of any party claiming
through or under the person.
Iowa Code § 622.10(2). The district court held the patient-litigant
exception applies to Amy’s medical records because her fitness is an
issue in the case; and therefore, Amy’s records are discoverable. We
disagree.
The language of the patient-litigant exception requires that the
condition of the patient be an element or factor in a claim or defense of
the patient. As this court explained in Chung, “[t]he statute requires the
condition be an element or factor of the claim or defense of the person
claiming the privilege.” 548 N.W.2d at 150. We have specifically rejected

-- 10 of 14 --

11
the argument that a litigant’s opponent can bring the litigant’s medical
records into issue. Id. Additionally, “[t]he denial of an element or factor
of one’s opponent’s case does not make that element or factor part of the
case of the person making the denial.” Id. “[T]he mere act of denying the
existence of an element or factor of an adversary’s claim does not fall
within the statutory language.” Id.
Here, the Ashenfelters bear the burden to prove Amy is unfit.
Amy’s fitness, and therefore her mental health, is an element or factor in
the Ashenfelters’s claim. Amy’s mere act of denying the Ashenfelters’s
claim that she is unfit does not fall within the patient-litigant exception
in section 622.10.
C. Constitutional Right to Privacy. Amy argues her records are
protected by the constitutional right to privacy. We agree. Mental health
and medical records are protected by a constitutional right to privacy.
See Cashen, 789 N.W.2d at 407 (“We recognize a patient’s right to
privacy in his or her mental health records . . . .”); McMaster, 509 N.W.2d
at 758 (“[T]he majority of [courts] hold that the right of privacy should
extend to the patient records of mental health professionals. . . . We join
those courts that extend constitutional protection to such records.”).
D. Balancing Test. The Ashenfelters argue Amy’s statutory
privilege and constitutional right to privacy protecting her medical and
mental health records can be overcome through the use of a balancing
test. As we explained in Cashen, the constitutional right to privacy in
medical and mental health records is “not absolute, but qualified.” 789
N.W.2d at 406. Similarly, in discussion of Iowa Code section 622.10,
Heemstra applied a balancing test and explained that “these privileges
must be tempered by defendants’ constitutional right to present a
defense.” 721 N.W.2d at 562.

-- 11 of 14 --

12
The balancing test weighs an individual’s privacy interest against
other public interests such as “the societal need for information”
possessed by official investigators of criminal activity, Chidester, 353
N.W.2d at 853, “society’s interest in securing information vital to the fair
and effective administration of criminal justice,” id., and the “defendants’
constitutional right to present a defense,” Heemstra, 721 N.W.2d at 562;
accord Cashen, 789 N.W.2d at 407.
The United States Supreme Court has suggested that a balancing
test will never be appropriate in a civil case. In Jaffee v. Redmond, 518
U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996), the Court expressly
rejected the Seventh Circuit’s use of a balancing test to determine
whether the medical records of the defendant in a federal civil action
were discoverable. Jaffee, 518 U.S. at 17, 116 S. Ct. at 1932, 135 L. Ed.
2d at 349. The court held that “[m]aking the promise of confidentiality
contingent upon a trial judge’s later evaluation of the relative importance
of the patient’s interest in privacy and the evidentiary need for disclosure
would eviscerate the effectiveness of the privilege.” Id. Because we hold
that even if we were to apply a balancing test, Amy’s medical records
must remain protected, we need not address whether the balancing test
is inappropriate in all civil cases.
The Ashenfelters have not asserted a counterbalancing
consideration that would override Amy’s privilege in her mental and
medical health records. This is a civil proceeding. Unlike our recent
decision in Cashen, the constitutional right to a fair trial is not
implicated.
We reject the Ashenfelters’s attempt to characterize the interest
they assert as the best interest of A.M. Amy is presumed to act in the
best interest of A.M. In re Marriage of Howard, 661 N.W.2d 183, 190

-- 12 of 14 --

13
(Iowa 2003) (noting “presumption of fitness accorded a parent”); Santi,
633 N.W.2d at 319 (noting “historical presumption that fit parents act in
the best interests of their children”). Amy’s parental interest in the care,
custody, and control of A.M. is a fundamental liberty interest protected
by the United States and Iowa Constitutions. See Marriage of Howard,
661 N.W.2d at 191–92 (holding grandparent visitation statute
unconstitutional because it allowed the court to grant grandparent
visitation where parents were divorced without a determination of
parental unfitness); Santi, 633 N.W.2d at 321 (holding grandparent
visitation statute unconstitutional as applied to married parents because
it did not require a determination of parental unfitness); see also Troxel v.
Granville, 530 U.S. 57, 67, 120 S. Ct. 2054, 2060–61, 147 L. Ed. 2d 49,
57 (2000) (holding Washington’s third party visitation statute was
unconstitutional because it failed to presume a fit parent makes
decisions in the best interests of the child).
Amy is presumed to be a fit parent and she has made a
determination that visitation with the Ashenfelters is not in the best
interest of A.M. The Ashenfelters’s reliance on In re Hough, 590 N.W.2d
556 (Iowa Ct. App. 1999), to suggest the courts may simply analyze the
best interests of the child in grandparent visitation cases is misplaced.
See Hough, 590 N.W.2d at 558. Hough was based on a prior visitation
statute and decided before Santi and Marriage of Howard. Marriage of
Howard specifically held that “the best interests of a child requirement
. . . is insufficient” to withstand constitutional scrutiny in a grandparent
visitation statute. 661 N.W.2d at 191.
The Ashenfelters attempt to compare their interest to that of the
State in a child-in-need-of-assistance (CINA) action. We reject this
comparison. The Ashenfelters’s petition for grandparent visitation is not

-- 13 of 14 --

14
a CINA action, and the Ashenfelters do not have the authority of the
State to pursue a CINA case. We reach no conclusion regarding the
ability of a court to order disclosure of medical or mental health records
to the State in a CINA action. Here, the State conducted a CINA
assessment based on allegations that included Amy’s mental health
status. The State recommended against juvenile court involvement. The
State also did not recommend any services. Instead, the CINA
assessment determined: (1) “there does not appear to be much of a base
to the allegations made,” (2) “Amy has many support systems,” (3) “it
appears that [Amy] has taken appropriate steps for [A.M.], and (4) Amy
“has done better since separating herself from her family.”
The Ashenfelters’s desire for visitation cannot overcome Amy’s
constitutional and statutory privilege against production of her medical
and mental health records in a petition for grandparent visitation.
IV. Conclusion.
The district court abused its discretion in ordering Amy to produce
her medical and mental health records to the Ashenfelters and to answer
related interrogatories. Amy’s records are protected by statute and by
her constitutional right to privacy. The Ashenfelters’s have not asserted
a countervailing interest which would override Amy’s constitutional right.
DISTRICT COURT ORDER REVERSED.

-- 14 of 14 --