1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-16-1996

Hahnemann Univ. Hosp. v. Edgar

Precedential or Non-Precedential:

Docket 95-1667

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Recommended Citation

"Hahnemann Univ. Hosp. v. Edgar" (1996). 1996 Decisions. Paper 248.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 95-1667 

 

HAHNEMANN UNIVERSITY HOSPITAL, 

 Petitioner

v. 

CHARLES C. EDGAR and LAURA D.G. EDGAR, 

conservators of the person and estate of 

SHANE EDGAR, and CHARLES C. EDGAR 

 and LAURA D.G. EDGAR, in their own rights, 

 Respondents

 

The Honorable Raymond J. Broderick, 

United States District Judge, 

 Nominal Respondent

 

On Petition for a Writ of Mandamus to the United States 

District Court for the Eastern District of Pennsylvania 

(Related to D.C. Civil Action No. 94-3515) 

 

Argued November 30, 1995 

BEFORE: GREENBERG and COWEN, Circuit Judges, and 

PARELL, District Judge0

(Filed: January 16, l996) 

 

 Sharon M. Reiss (argued) 

 Kimberly A. Cummings 

 Sheila A. Haren 

 Post & Schell, P.C. 

 19th Floor 

 1800 J.F.K. Boulevard 

 

0

 Honorable Mary Little Parell, Judge of the United States 

District Court for the District of New Jersey, sitting by 

designation. 
2 

 Philadelphia, PA 19103 

 

 Attorneys for Petitioner

 Fred T. Magaziner (argued) 

 Jill L. Russin 

 Dechert, Price & Rhoads 

 1717 Arch Street 

 4000 Bell Atlantic Tower 

 Philadelphia, PA 19103 

 Attorneys for Respondents

 

OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 Respondents Charles C. Edgar and Laura D.G. Edgar sued 

Hahnemann University Hospital as conservators of the person and 

estate of their daughter, Shane Edgar, and in their own right, 

alleging that the hospital acted with gross negligence and 

willful misconduct when it failed to protect Shane Edgar from 

being raped forcibly by two male patients.0 During discovery, 

the Edgars requested the patient charts of the two male patients 

who allegedly raped Shane Edgar. The hospital objected on the 

grounds that the documents were confidential and that it could 

not comply with the request without violating the Pennsylvania 

Mental Health Procedures Act, Pa. Stat. Ann. tit. 50, § 7101, et

 

0

At oral argument we asked counsel for the Edgars about the 

prudence of including Shane Edgar's name in unsealed court 

documents, in light of the nature of the allegations in the 

underlying case. The attorney responded that the Edgars had 

chosen not to have their names redacted from court proceedings. 

For this reason, we include names in this opinion. 
3 

seq. (Purdon's Supp. 1995) ("MHPA"). The district court entered 

a series of orders requiring Hahnemann to provide the court with 

copies of all documents in its possession concerning the two male 

patients for an in camera review, with possible disclosure of the 

information to the parties, their counsel, and their experts, for 

use at trial. Hahnemann filed a petition for a writ of mandamus 

in this court, seeking immediate review of the district court's 

orders. We will grant Hahnemann's petition for mandamus. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 On March 19, 1993, Shane Edgar was admitted to the 

Psychiatric Medical Care Unit of Hahnemann University Hospital in 

Philadelphia, Pennsylvania, for observation and evaluation. That 

same day, an involuntarily committed male psychiatric patient 

sexually harassed Shane; Hahnemann allegedly became aware of the 

incident. That night, the same male patient, along with another 

involuntarily committed male psychiatric patient, raped Shane in 

the bathroom of her room.0

 Charles and Laura Edgar filed an action on behalf of 

their daughter and themselves against Hahnemann, alleging that 

the hospital negligently failed to protect their daughter from 

the sexual assault. Because notice of the danger may be germane 

to their cause of action under Pennsylvania law, the Edgars 

sought discovery from Hahnemann of any information that would 

 

0

We recite the facts as the Edgars allege them. It should be 

understood, therefore, that our recitation does not constitute 

findings. 
4 

demonstrate that it was on notice of the two male patients' 

propensity for sexual assault. Specifically, they sought the 

patient charts of the two men. The hospital objected on the 

grounds that the documents were confidential and that it could 

not comply with the request without violating the MHPA. After 

the Edgars moved for sanctions, the district court held a 

conference in an attempt to resolve the dispute. On April 19, 

1995, the district court denied the Edgars' motion and directed 

that if the dispute was not resolved they could file a more 

specific set of requests for documents, limited by the MHPA. 

 After a final pretrial conference held on May 4, 1995, 

the Edgars filed a motion to compel the production of various 

documents, including the patient charts of the two male patients 

and/or entries on their charts made by a mental health worker, 

and the incident reports regarding the rape. Again, Hahnemann 

objected on the grounds that the confidentiality of the documents 

required protection under the MHPA. At the same time, the 

hospital pointed out that redacting the patients' names from the 

charts would not protect the documents' confidentiality because 

the Edgars had information that would allow them to deduce which 

report belonged to which patient. 

 On May 11, 1995, the district court, pursuant to 

section 111 of the MHPA, Pa. Stat. Ann. tit. 50, § 7111, denied 

the Edgars' request for the records. The court also denied the 

motion to compel the notes and chart entries of the mental health 

technician on duty the night of the attack. The court did, 
5 

however, order Hahnemann to produce any "incident reports" 

created as a result of the attack, and further ordered that: 

In the event that the only incident reports 

prepared by [the mental health technician] 

are contained in one or both of the treatment 

records of the male patients involved in the 

subject incident, the defendant shall . . . 

submit the treatment records of these two 

patients to the Court, in camera, for a 

determination as to whether § 7111 of the 

MHPA prohibits the discovery of said reports. 

App. at 133. Hahnemann later informed the court by letter that 

it had disclosed all "incident reports" to the Edgars, and that 

an in camera inspection would not be necessary because the mental 

health technician involved had not prepared such a report. 

 The Edgars filed a motion for reconsideration of the 

May 11 order, emphasizing again that they were seeking 

information as to whether the hospital should be held liable for 

the rape and that they would be willing to accept documents 

edited so as to obscure the identity of the patients. In 

response, Hahnemann argued that the MHPA was so broad that even 

disclosure of the records to the district court for an in camera

inspection was prohibited. Further, it reiterated its argument 

that "[the Edgars] are in possession of information regarding 

these two patients which would unfailingly allow them to identify 

which records pertain to which man, regardless of redaction." 

App. at 167. On July 10, 1995, the district court entered an 

order stating that its May 11, 1995 order denying the Edgars 

access to the patient charts remained in full force and effect 

and requiring the parties to appear for a conference in chambers 

on July 17, 1995, to discuss the following: 
6 

[W]hether, in the interest of justice, 

methods might be employed to maintain the 

confidentiality of documents covered by §7111 

of the MHPA in the event the Court should 

order documents concerning the treatment of 

the two male patients who allegedly attacked 

plaintiff Shane Edgar turned over to the 

Court for a determination as to whether said 

documents contain any matter which should 

have put the defendant on notice. 

Edgar v. Hahnemann Univ. Hosp., No. 94-3515 (E.D. Pa. July 10, 

1995). On the same day, the district court entered an order 

clarifying the meaning of "incident reports" and reiterating its 

requirement for the production of such reports, including the in

camera inspection of the patients' records if such reports were 

included therein. 

 At the July 17, 1995 conference, the court decided that 

the hospital should deliver to it copies of all documents 

regarding the two male patients so that it could determine 

whether they contained information bearing on the liability of 

the hospital. The court thereafter directed the parties to 

submit proposed orders providing for the court to view the 

documents in camera. In response to the court's request, 

Hahnemann supplied it with a proposed order requiring disclosure 

of the medical records in camera but also containing 

certification language pursuant to 28 U.S.C. § 1292(b) and Fed. 

R. App. P. 5, designed to allow immediate appeal from an 

interlocutory order. The court then entered an order on July 18, 

1995, which did not adopt the section 1292(b) certification 

language but read as follows: 

Within five days . . . Hahnemann University 

Hospital shall deliver to the court copies of 

all documents (including medical and 
7 

psychiatric records as well as documents 

relating to involuntary commitment) in its 

possession concerning each of the two male 

patients who allegedly attacked Shane Edgar 

on March 19, 1993. The Court shall make 

every effort to maintain the confidentiality 

of the documents as prescribed by 50 P.S. 

§7111, 42 P.S. § 5944, 42 P.S. § 5929 and 28 

Pa. Admin. Code § 103.22(b)(4) and shall 

review the documents in camera for the sole 

purpose of determining whether the documents 

contain information relevant to the issue of 

the standard of care the hospital owed Shane 

Edgar to insure her safety and well being 

while she was a patient. In the event the 

court determines that these documents do 

contain information relevant to the issue of 

the standard of care the hospital owed Shane 

Edgar to insure her safety and well being 

while she was a patient, the Court will 

direct counsel to make an effort to agree on 

a procedure to be employed during the trial 

of this case which will maintain the 

confidentiality of documents and will permit 

the use of the information. . . . 

Edgar v. Hahnemann Univ. Hosp., No. 94-3515, slip op. at 2 (E.D. 

Pa. July 18, 1995). When Hahnemann failed to comply with this 

order, the Edgars moved the court to hold it in contempt. 

 On August 8, 1995, Hahnemann filed a petition for a 

writ of mandamus in this court under the All Writs Act, 28 U.S.C. 

§ 1651(a), seeking to compel the district court to withdraw its 

July 10 and 18, 1995 orders. Two days later, Hahnemann asked the 

district court to stay all proceedings before it pending our 

disposition of the mandamus petition. While the request for a 

stay was pending, the district court granted the Edgars' 

application to hold Hahnemann in civil contempt for not providing 

the district court with the contested medical records as ordered. 

Thus, it entered an order on August 14, 1995, imposing a coercive 
8 

fine on Hahnemann of $1,000.00 per day for each day after August 

16, 1995, that it did not comply with the July 18, 1995 order. 

The district court then denied Hahnemann's request for a stay on 

August 15, 1995, without prejudice to Hahnemann renewing the 

request in the event that we grant the petition for mandamus. In 

denying the request for a stay, the court observed that it had 

not issued a formal ruling regarding certification under section 

1292(b).0

 On August 28, 1995, Hahnemann filed a "Supplemental 

Petition . . . for Writ of Mandamus" in this court requesting 

that we issue a stay of the coercive fine pending resolution of 

its petition on the merits. On September 6, 1995, we entered an 

order staying the coercive fine effective August 28, 1995, when 

the supplemental petition was filed. 

II. DISCUSSION 

 The district court has jurisdiction over the Edgars' 

diversity of citizenship action pursuant to 28 U.S.C. § 1332. Our 

jurisdiction is invoked pursuant to the All Writs Act, which 

provides that federal courts "may issue all writs necessary or 

 

0

[A]lthough para. 9 of [Hahnemann's Petition 

for Stay of the Proceedings] asserts `in 

releasing its July 19, 1995 Order, this Court 

declined petitioning defendant's request that 

these issues be certified for immediate 

appeal pursuant to the procedure set forth at 

28 U.S.C. § 1292(b)', the Court has not 

issued any ruling in this case concerning 

certification pursuant to 28 U.S.C. §1292(b). 

Edgar v. Hahnemann Univ. Hosp., No. 94-3515 (E.D. Pa. Aug. 15, 

1995). 
9 

appropriate in aid of their respective jurisdictions and 

agreeable to the usages and principles of law." 28 U.S.C. 

§1651(a). As the district court has diversity jurisdiction, this 

court potentially has jurisdiction over the case and therefore 

has jurisdiction under the All Writs Act to consider Hahnemann's 

petition. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 482 (3d 

Cir. 1995) (citing Westinghouse v. Republic of the Philippines, 

951 F.2d 1414, 1422 (3d Cir. 1991)). 

 Hahnemann's petition contends that the district court's 

orders requiring it to submit for in camera review the patient 

charts of the two male patients who allegedly raped Shane Edgar 

would require it to violate the MHPA, as well as Pennsylvania's 

statutory psychotherapist-patient privilege, 42 Pa. Cons. Stat. 

Ann. § 5944 (Purdon's Supp. 1995), the Pennsylvania Patient's 

Bill of Rights, 28 Pa. Code. Ch. 103 (1983), and the 

constitutional rights of privacy of the male patients. Our 

inquiry requires us to decide whether the writ of mandamus is the 

appropriate means of relief for the hospital to pursue and, if it 

is, to examine whether the proposed in camera review of documents 

is permissible. The first issue, of course, implicates federal 

procedural law, and the parties correctly agree that the second 

issue should be decided under state law. See Fed. R. Evid. 501. 

Because we hold that mandamus is appropriate in this case and 

that the MHPA as a matter of law prevents the disclosure of the 

documents relating to the male patients' psychiatric care, we 

will grant the petition for mandamus, but will not reach 
10 

Hahnemann's remaining reasons for contending that we should issue 

the writ. 

A. The Procedural Question

 The writ of mandamus is a drastic remedy that a court 

should grant only in extraordinary circumstances in response to 

an act "amounting to a judicial `usurpation of power.'" Will v. 

United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273 (1967) (quoting 

De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 

65 S.Ct. 1130, 1132 (1945)); Kerr v. United States Dist. Court, 

426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24 (1976). Given its 

drastic nature, a writ of mandamus should not be issued where 

relief may be obtained through an ordinary appeal. Bankers Life 

& Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148 

(1953) (citing Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 

1558, 1559 (1947)); In re Sch. Asbestos Litig., 977 F.2d 764, 772 

(3d Cir. 1992); Oracare DPO, Inc. v. Merin, 972 F.2d 519, 522-23 

(3d Cir. 1992). Thus, in addition to the jurisdictional 

prerequisite inherent in the language of section 1651(a), two 

additional prerequisites for issuance of a writ are: "(1) that 

petitioner have no other `adequate means to attain the [desired] 

relief,' and (2) that petitioner meet its burden of showing that 

its right to the writ is `clear and indisputable.'" Haines v. 

Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992) (quoting Kerr, 

426 U.S. at 403, 96 S.Ct. at 2124, and citing DeMasi v. Weiss, 

669 F.2d 114, 117 (3d Cir. 1982)); Communication Workers v. 

American Tel. & Tel. Co., 932 F.2d 199, 208 (3d Cir. 1991). Even 
11 

when these prerequisites are met, issuance of the writ is largely 

discretionary, bearing in mind "`the unfortunate consequence of 

making the . . . judge a litigant,'" Kerr, 426 U.S. at 402, 96 

S.Ct. at 2124, and the highly disfavored effect of piecemeal 

appellate review. Haines, 975 F.2d at 89; DeMasi v. Weiss, 669 

F.2d at 117. 

 Discovery orders are not "final" for purposes of 28 

U.S.C. § 1291 and, therefore, ordinarily are not appealable until 

after there is a final judgment. Haines, 975 F.2d at 83 (citing 

Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir. 1969)). 

Furthermore, we do not permit parties to litigation to circumvent 

the final judgment rule simply by resisting discovery orders and 

then appealing from an eventual finding of civil contempt. See, 

generally, DeMasi, 669 F.2d at 122-23. To be sure, appeal after 

final judgment constitutes "other means" of relief. Where a 

privilege is asserted, however, such relief usually is not 

"adequate." As we held in Bogosian v. Gulf Oil Corp., 738 F.2d 

587 (3d Cir. 1984), "[w]hen a district court orders production of 

information over a litigant's claim of a privilege not to 

disclose, appeal after a final decision is an inadequate remedy . 

. . for compliance with the production orders complained of 

destroys the right sought to be protected." Id. at 591 

(citations omitted). Several of our cases since Bogosian have 

reaffirmed this basic proposition. See, generally, Glenmede 

Trust Co., 56 F.3d at 483; Rhone-Poulenc Rorer Inc. v. Home 

Indem. Co., 32 F.3d 851, 861 (3d Cir. 1984); Haines, 975 F.2d at 

89. 
12 

 Respondents and nominal respondent argue, however, that 

issuing a writ of mandamus would be inappropriate at this point 

because Hahnemann never formally petitioned the district court 

for certification under 28 U.S.C. § 1292(b).0 Therefore, 

respondents contend there remains a viable and "adequate" 

alternative to the issuance of an extraordinary writ. We 

disagree. Hahnemann included certification language in the 

proposed order allowing in camera inspection that it submitted to 

the district court. Nevertheless, the district court did not 

include that language in the order it entered. While it is true 

that, "[w]here interlocutory appeal seems a practical but untried 

avenue, we will ordinarily deny a petition for mandamus," In re 

Sch. Asbestos Litig., 977 F.2d at 774, we also have stated that 

"neither Federal Rule of Appellate Procedure 21 nor any decision, 

Rule, or Internal Operating Procedure of this court has codified" 

a requirement to seek section 1292(b) certification before filing 

a petition for mandamus. Id. at 773. Furthermore, although 

Hahnemann did not formally move the district court for a section 

1292(b) certification, it is clear that it did so at least 

informally. 

 We recognize that, in a particular case, it might be 

appropriate to exercise our discretion to deny mandamus because a 

 

0

In their answer to the petition, the Edgars raised this 

objection, but they did not repeat it in their subsequently filed 

brief and, at oral argument, appeared to abandon the objection. 

We nevertheless address the point because (1) it is appropriate 

to do so in light of the standards governing applications for 

mandamus and (2) the nominal respondent has filed an answer 

raising the point. 
13 

formal application for certification has not been made under 

section 1292(b). Yet where, as here, at least an informal 

application has been made and not granted, we believe it can be 

appropriate to grant mandamus, especially since we never have 

established an "inflexible pleading requirement" regarding 

section 1292(b) certification. Id. at 774; see Alexander v. 

Primerica Holdings, Inc., 10 F.3d 155, 163 n.8 (3d Cir. 1993).0

Hahnemann's desired relief of maintaining the confidentiality and 

privilege of the medical records of the two male patients could 

be lost forever unless we issue a writ of mandamus. See Haines, 

975 F.2d at 89 (writ of mandamus is only means of relief from 

order requiring production of documents allegedly subject to 

attorney-client privilege). We therefore hold that because 

Hahnemann has no other adequate means to attain its desired 

relief, the first requirement for mandamus has been satisfied. 

 In addressing the merits of this case in an effort to 

determine if Hahnemann's right to a writ of mandamus is "clear 

and indisputable," Haines, 975 F.2d at 89, we first must specify 

exactly which order(s) of the district court are subject to 

 

0

We also point out that section 1292(b) permits a district court 

to certify an order so that a court of appeals may grant leave to 

appeal only if the district court concludes that the "order 

involves a controlling question of law . . . and that an 

immediate appeal from the order may materially advance the 

ultimate termination of the litigation . . . ." It is 

conceivable that mandamus might be appropriate in a case not 

satisfying the section 1292(b) certification standard. See

Westinghouse v. Republic of the Philippines, 951 F.2d at 1422 

n.6; Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 n.14 

(3d Cir. 1986). Thus, we have not imposed an inflexible 

requirement that certification be sought and, if granted, leave 

to appeal be sought before a writ of mandamus may issue. 
14 

mandamus. We have decided that only the July 10 and 18, 1995 

orders requiring Hahnemann to produce the treatment records of 

the two male patients are subject to mandamus. Although 

Hahnemann has indicated in its petitions and briefs that it also 

challenges the August 14 and 15, 1995 orders respectively holding 

it in contempt and denying its motion for a stay, we find that 

those orders are not appropriate for review by mandamus. To the 

extent that Hahnemann seeks relief from the August 15 order 

denying Hahnemann's motion for a stay, the district court's order 

is not reviewable by mandamus because the court indicated that it 

would permit a renewed motion to stay (or vacate) in the event 

that this court grants Hahnemann's writ on the merits. As to the 

August 14 contempt order, Hahnemann has a possible alternative 

remedy that renders our issuance of a writ inappropriate: 

Hahnemann can appeal the contempt order after final judgment if 

it has paid the fines incurred between August 16 and August 28, 

1995 (the latter being the date of our stay). Thus, we review on 

the merits only the district court's orders of July 10 and July 

18 requiring the production for in camera review of the patients' 

treatment charts. 

B. The Scope of the MHPA Privilege

 As we stated above, Hahnemann claims that the MHPA 

forbids it from producing the records of the patients who 

allegedly raped Shane Edgar to the district court. The Act 

"establishes rights and procedures for all involuntary treatment 

of mentally ill persons, whether inpatient or outpatient, and for 
15 

all voluntary inpatient treatment of mentally ill persons." Pa. 

Stat. Ann. tit. 50, § 7103. Section 111 of the MHPA provides as 

follows: 

 All documents concerning persons in 

treatment shall be kept confidential and, 

without the person's written consent, may not 

be released or their contents disclosed to 

anyone except: 

 (1) those engaged in providing treatment 

for the person; 

 (2) the county administrator, pursuant 

to section 110; 

 (3) a court in the course of legal 

proceedings authorized by this act; and 

 (4) pursuant to Federal rules, statutes 

and regulations governing disclosure of 

patient information where treatment is 

undertaken in a Federal agency. 

 In no event, however, shall privileged 

communications, whether written or oral, be 

disclosed to anyone without such written 

consent. This shall not restrict the 

collection and analysis of clinical or 

statistical data by the department, the 

county administrator or the facility so long 

as the use and dissemination of such data 

does not identify individual patients. . . . 

Pa. Stat. Ann. tit. 50, § 7111. The purpose of the MHPA is to 

further the policy of the Commonwealth of Pennsylvania "to seek 

to assure the availability of adequate treatment to persons who 

are mentally ill." Id. § 7102. In fact, the Pennsylvania 

Supreme Court has given the patient's right to confidentiality of 

psychiatric records constitutional status. See In re June 1979 

Allegheny County Investigating Grand Jury, 415 A.2d 73, 77-78 

(Pa. 1980) (but finding that public policy reasons may allow 

constitutionally protected records to be subpoenaed where 

appropriate protections against further disclosure are in place); 
16 

In re B., 394 A.2d 419, 425 (Pa. 1978). The Act therefore is 

strictly construed. In re Roy, 620 A.2d 1172, 1173 (Pa. Super. 

Ct. 1993), appeal denied, 639 A.2d 30 (Pa. 1994); Commonwealth v. 

Moyer, 595 A.2d 1177, 1179 (Pa. Super. Ct. 1991), appeal denied, 

604 A.2d 248 (Pa. 1992). 

 Section 111 of the MHPA does not create a conventional 

privilege protecting communications only if they satisfy certain 

elements. See In re June 1979 Allegheny County Investigating 

Grand Jury, 415 A.2d at 76-77. On the contrary, section 111 is 

much broader in scope, covering any document that "concern[s] 

persons in treatment." Pa. Stat. Ann. tit. 50, § 7111. The 

statute requires that such documents "shall be kept confidential 

and, without the person's written consent, may not be released or 

their contents disclosed to anyone except" in four listed 

situations, all having to do with psychiatric care. Id. That 

language indicates that disclosure of treatment records is 

forbidden unless one of the statutory exceptions applies. 

 Indeed, it appears that every Pennsylvania court in 

determining the applicability of section 7111 first has examined 

whether the situation before it constituted one of the listed 

exceptions. See, e.g., Johnsonbaugh v. Dep't of Public Welfare, 

665 A.2d 20, 26 (Pa. Commw. Ct. 1995) ("Petitioner has failed to 

establish that any of the statutory exceptions apply[.]"). The 

only exception that could be applied in the case before us is the 

one contained in subparagraph (3), allowing disclosure of 

confidential documents to "a court in the course of legal 

proceedings authorized by this act." Pa. Stat. Ann. tit. 50, 
17 

§7111. However, this exception has been held to include only 

involuntary and voluntary mental health commitment proceedings, 

as those are the only legal proceedings authorized by the Act. In 

re Roy, 620 A.2d at 1173-74 ("[A] patient's inpatient mental 

health records may be used by a court only when the legal 

proceedings being conducted are within the framework of the MHPA, 

that is, involuntary and voluntary mental health commitment 

proceedings.") (quoting Commonwealth v. Moyer, 595 A.2d at 1179). 

 When none of the four exceptions to section 7111 of the 

MHPA applies, the Pennsylvania state courts consistently have 

denied requests for production of documents that the statutory 

privilege covers. For example, in Commonwealth v. Moyer, 595 

A.2d 1177, a case stemming from repeated sexual assaults of a 

boy, the Superior Court of Pennsylvania overturned the 

defendant's conviction on the ground that the trial court erred 

in admitting his mental health treatment records into evidence 

because they were privileged under the MHPA. In Leonard v. 

Latrobe Area Hosp., 549 A.2d 997 (Pa. Super. Ct. 1988), 

plaintiffs' mother was killed by her husband, and they brought a 

negligence action against the hospital that treated him for a 

psychiatric disorder. The Superior Court reaffirmed that under 

the MHPA the hospital could not disclose the patient's records. 

 In Ferrara v. Horsham Clinic, 1994 WL 249741 (E.D. Pa. 

June 3, 1994), plaintiff brought a wrongful death and survival 

action against a clinic in which her daughter had committed 

suicide. The district court denied plaintiff's motion to compel 

production of the treatment notes concerning a patient who had an 
18 

altercation with her daughter. Id. at *2. The court held that 

these documents were privileged under the MHPA and could not be 

disclosed. Id. In Kakas v. Commonwealth, 442 A.2d 1243 (Pa. 

Commw. Ct. 1982), a hospital employee fired for allegedly 

punching a patient subpoenaed the patient's records for his 

hearing before the State Civil Service Commission to challenge 

the dismissal. The Commonwealth Court affirmed the Commission's 

quashing of the subpoena duces tecum on the ground that the 

records were privileged under the MHPA. 

 In fact, with the exception of cases in which the 

statutory privilege has been waived by the patient, e.g., Sprague 

v. Walter, 656 A.2d 890, 910-11 (Pa. Super. Ct. 1995), it seems 

that a Pennsylvania court has found in only one case that the 

protection conferred by section 7111 of the MHPA should give way. 

In Fewell v. Besner, 664 A.2d 577 (Pa. Super. Ct. 1995), the 

plaintiff was committed involuntarily pursuant to the MHPA after 

becoming severely depressed over her four-month-old son's death. 

While committed she confessed to the defendant, her therapist, 

that she had suffocated her son. Id. at 578. Believing 

(erroneously) that state law obligated him to report child abuse, 

the therapist informed the coroner of plaintiff's confession and 

testified at her criminal trial, where she was found guilty.0

 

0

On appeal from her conviction, the Superior Court found that the 

therapist's compelled testimony at trial violated the state's 

psychotherapist-patient privilege, 42 Pa. Cons. Stat. Ann. §5944, 

but determined that the error was harmless. Commonwealth v. 

Fewell, 654 A.2d 1109, 1115 (Pa. Super. Ct. 1995). The court was 

not presented with the issue involved in the civil suit (that the 

immunity provisions trumped the statutory confidentiality 

requirements). 
19 

Commonwealth v. Fewell, 654 A.2d 1109, 1115 (Pa. Super. Ct. 

1995). Plaintiff then sued the therapist for violating section 

111 of the MHPA but the trial court granted the therapist's 

motion to dismiss based on provisions in the mandatory reporting 

law granting immunity from suit for those who acted in good faith 

in making a report. On appeal, plaintiff claimed that the 

immunity provision was in conflict with the confidentiality 

requirements of section 111 of the MHPA. The Superior Court 

disagreed. It held that the privilege must yield to the immunity 

provisions, noting the strong policy interest evinced by the 

statutes requiring the reporting of child abuse. Thus, the court 

essentially held that a therapist who learns of child abuse 

during therapy and is compelled to testify at a criminal trial 

will not be permitted to invoke the MHPA confidentiality 

privilege, given the competing statutory interests in the 

reporting of child abuse, and the statutory immunity from suit 

granted to those making such reports. 

 The cases we have cited make it clear that the MHPA is 

strictly construed by the Pennsylvania courts. In the absence of 

a waiver of the privilege, in only one instance has a court held 

that a confidential document should be produced, and that case 

involved the competing statutory interests of child abuse 

reporting and good faith immunity from suit. No such competing 

statutory interests apply here, and in any event it is not the 

place of this court to create judicial exceptions to a 

Pennsylvania statute that has been strictly construed by the 

state's courts. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 
20 

101 (3d Cir. 1994) (federal court in diversity case ought not to 

stretch state common law). 

 In spite of the state courts' strict interpretation of 

the MHPA, however, the Edgars argue that Pennsylvania could not 

possibly have intended to require confidentiality under the 

circumstances presented in this case. Additionally, they 

complain that the policy the statute seeks to promote --

encouraging treatment by ensuring confidentiality -- is not 

advanced by strict adherence to the statutory language of the 

privilege in this case. Again, while the Edgars may raise 

plausible policy arguments against the legislative wording of the 

statute, we are obliged to follow the statute as written and 

interpreted by the Pennsylvania courts. The MHPA presents an 

absolute confidentiality privilege against the disclosure of 

documents that "concern[] persons in treatment." The 

Pennsylvania courts have interpreted the wording of the statute 

strictly. While in a particular case, a litigant may challenge 

documents for which protection is claimed as not meeting the 

"concerning persons in treatment" standard, that situation is 

clearly not present here, since the documents we are considering 

are the treatment records of the two men accused of raping Shane 

Edgar.0

 

0

We doubt that a hospital can make an unreviewable ex parte 

determination that a document concerns a person in treatment and 

thereby refuse to disclose documents for an in camera review, 

intended in the first instance to determine if the document is 

confidential according to section 111. If a hospital could 

sustain that position, it would be able to withhold documents 

that might not reasonably be covered by the section. We, 

however, are not concerned with a situation of that nature here. 
21 

 Further, unlike conventional privileges that apply only 

to certain communications, section 111 of the MHPA creates a much 

broader protection, forbidding the disclosure of any document

"concerning persons in treatment" regardless of the contents of 

that document. Thus, it is possible that documents receiving 

protection under the MHPA may not contain material that would be 

privileged under any other statutory or common-law privilege. 

Nevertheless, as long as the documents concern persons in 

inpatient psychiatric treatment (voluntary or involuntary), 

section 111 of the MHPA absolutely forbids their disclosure 

except in the enumerated circumstances.0 The in camera

inspection of such documents by the district court in this case 

does not fall within one of those exceptions. We have no further 

inquiry to make. 

III. CONCLUSION 

 We therefore hold that Hahnemann's right to a writ of 

mandamus is clear and indisputable, and that the district court 

exceeded its authority in compelling the hospital to produce the 

charts of the two male patients. Consequently, we will grant the 

writ of mandamus and direct the district court to vacate the July 

10 and 18, 1995 orders compelling production of the patients' 

records for in camera inspection and possible disclosure. 

 

0

As we have indicated, the MHPA applies to "all involuntary 

treatment of mentally ill persons, whether inpatient or 

outpatient, and [to] all voluntary inpatient treatment of 

mentally ill persons." Pa. Stat. Ann. tit. 50, § 7103. We are 

not concerned here with tortious conduct of outpatients. 
22 

However, we will deny Hahnemann's supplemental petition for a 

writ of mandamus on the issues of the petition for a stay of the 

district court proceedings and the district court's contempt 

order. The parties shall bear their own costs on these mandamus 

proceedings.