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.
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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.
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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.
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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 
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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, 
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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 
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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 
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 
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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 
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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 
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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.
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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 
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 
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.