State v. Zeitner

418 P.3d 990

STATE of Arizona, Appellee,

v.Chalice Renee ZEITNER, Appellant.

No. 1 CA-CR 16-0679

Court of Appeals of Arizona, Division 1.

FILED January 16, 2018

Arizona Attorney General's Office, Phoenix, By Michael T. O'Toole, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Mikel Steinfeld, Counsel for Appellant

Judge Diane M. Johnsen delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

OPINION

JOHNSEN, Judge:

¶ 1 Chalice Zeitner was convicted of defrauding the Arizona Health Care Cost Containment System ("AHCCCS") by lying to a physician to obtain coverage for an abortion. On appeal, she argues the superior court breached the physician-patient privilege by admitting her medical records and allowing her physicians to testify against her. We hold the privilege is abrogated by statute in cases of suspected AHCCCS fraud and affirm Zeitner's convictions.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Zeitner went to a Phoenix obstetrician for an abortion in March 2010. She told him she just had discovered she was pregnant after recently undergoing extensive radiation and chemotherapy treatments for cancer. Zeitner said she wanted an abortion because she thought the radiation and chemotherapy likely had harmed her fetus. After examining Zeitner, however, the obstetrician concluded she was well-nourished and healthy, about 20 weeks' pregnant and in no acute distress. Accordingly, he proposed a course of care designed to avoid an abortion. He told Zeitner to obtain information from her cancer physicians about her treatments and referred her to a specialist in high-risk pregnancies in the hope that she could deliver a viable baby.

¶ 3 Zeitner met with the specialist a few days later. Examining Zeitner, the specialist grew suspicious. He thought it unusual that, although Zeitner told him she had a diagnosed malignant uterine tumor, the physicians treating her cancer had not removed her uterus. Zeitner told the specialist her main chemotherapy drug was acetaminophen—an over-the-counter pain reliever, not a chemotherapy drug. And Zeitner was unable to relate details of her cancer diagnosis or treatment, other than that she had been diagnosed at a hospital in Boston. From an ultrasound, the specialist saw no abnormalities that compelled an abortion. He reported his concerns about Zeitner's veracity to the obstetrician.

¶ 4 A few days later, Zeitner successfully applied for AHCCCS benefits.¹ AHCCCS had turned down an application Zeitner had submitted just a month before, citing insufficient documentation. Although Zeitner's earlier application had said she had no serious or chronic illnesses, on the application she submitted in late March, Zeitner stated she had a serious chronic illness and said her pregnancy was high-risk and life-threatening.

¶ 5 On March 31, the obstetrician received an email signed "Al Zeitner" that seemed to be following up on behalf of Chalice Zeitner.² Referencing Chalice in the third person, the email stated the author was waiting to hear back from the obstetrician about a "procedure" that he purportedly had proposed. The email suggested the procedure was urgent, stating:

Chalice is scheduled to resume chemo and radiotherapy on April 9th. She must have the tumors removed in the next 4 weeks. She is on bedrest and supervised care in her home until notice from [the Phoenix obstetrician] of this procedure.

¶ 6 Shortly thereafter, Zeitner brought the obstetrician a letter dated April 1, purportedly written by a "Dr. McMahon" at the Boston hospital Zeitner claimed had treated her for cancer. The letter recommended that Zeitner "receive an urgent [abortion] ... to relieve third term life-threatening certainties to the patient." Attached to the letter was a list of chemotherapy and radiotherapy medications purportedly prescribed to Zeitner. (Although a physician named McMahon actually practiced at the Boston hospital at the time, he had never treated Zeitner and had not written the letter or created the list of medications Zeitner gave to him.)

¶ 7 Accepting the letter as authentic, the obstetrician concluded Zeitner urgently needed an abortion. Based on his opinion that an abortion was necessary to protect Zeitner's health, AHCCCS authorized payment, and the obstetrician aborted Zeitner's fetus on April 9.

¶ 8 Meanwhile, Zeitner launched a scheme to garner donations from friends and others to fund her purported cancer treatments. Using the name "Trinity McLaughlin," Zeitner sent a social media message to her boyfriend, informing him that "Trinity" and a few others had created a webpage to raise funds for Zeitner's cancer treatments and suggesting the boyfriend take over the fundraising effort. The next week, "Trinity" emailed the boyfriend fundraising materials for him to use, including a heartrending plea for donations detailing Zeitner's cancer, her costly painful treatments and her resulting financial hardships.

¶ 9 Acting on "Trinity's" request, the boyfriend posted on a fundraising website the story "Trinity" had sent him, forwarded "Dr. McMahon's" letter to the website to satisfy its request for proof that Zeitner actually had a medical condition, opened a bank account for donations, and solicited more than 600 social media friends to help pay for the purported cancer treatments. In response, more than 20 people donated a cumulative total of more than $2,000 to Zeitner's cancer fund via the website.

¶ 10 Several months later, Zeitner became pregnant again, and the Phoenix obstetrician delivered her child by caesarean section. During the procedure, the obstetrician saw no evidence that tumors had been removed from Zeitner's uterus or that she had undergone chemotherapy or radiation. By then highly suspicious about Zeitner's claimed cancer, the obstetrician contacted Dr. McMahon at the Boston hospital, who said he had not treated Zeitner nor authored the letter Zeitner had given him. The obstetrician reported his suspicions about Zeitner to her health plan, which forwarded the matter to AHCCCS.

¶ 11 A grand jury eventually indicted Zeitner on 11 charges. AHCCCS generally does not cover abortions; the indictment alleged Zeitner defrauded AHCCCS and stole public health benefits by lying about having cancer so that her abortion would fall within an exception to that rule. The State also alleged Zeitner defrauded the donors to her cancer fund, attempted to steal donations and committed identity theft and forgery.

¶ 12 After pleading not guilty to each of the charges, Zeitner moved to preclude all information her physicians obtained from her, including records relating to her communications with the physicians and their examinations of her, arguing they were protected under Arizona's physician-patient privilege, Arizona Revised Statutes ("A.R.S.") section 13–4062(A)(4) (2018).³ The State opposed the motions, arguing the privilege was abrogated by statute and, in any event, Zeitner had waived it. The court denied the motions.

¶ 13 After an 11–day trial in which the court admitted Zeitner's medical records and allowed her physicians to testify, the jury found Zeitner guilty of all charges. The court sentenced her to concurrent prison terms, the longest of which was ten years.

¶ 14 Zeitner timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12–120.21(A)(1) (2018), 13–4031 (2018) and –4033(A)(1) (2018).

DISCUSSION

A. General Principles.

¶ 15 On appeal, the only argument Zeitner raises is that the superior court erred by admitting her medical records and allowing her physicians to testify against her.⁴ We review de novo whether a privilege applies. State v. Wilson , 200 Ariz. 390, 393, ¶ 4, 26 P.3d 1161, 1164 (App. 2001) ; see also State v. Herrera , 203 Ariz. 131, 136, ¶ 12, 51 P.3d 353, 358 (App. 2002) (reviewing de novo a statutory exception to a privilege).

¶ 16 Arizona's physician-patient privilege applicable in criminal cases provides:

A person shall not be examined as a witness in the following cases:

* * *

4. A physician or surgeon, without consent of the physician's or surgeon's patient, as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient.

A.R.S. § 13–4062(4). Although the privilege is framed as a testimonial privilege, it also protects patient medical records. Tucson Med. Ctr. Inc. v. Rowles , 21 Ariz.App. 424, 427, 520 P.2d 518 (1974) ; see State v. Mincey , 141 Ariz. 425, 439, 687 P.2d 1180, 1194(1984) (privilege protects "[a]ll information obtained by the physician, whether from examination, testing, or direct communication").⁵

¶ 17 "The purpose of the [physician-patient] privilege is to encourage ‘full and frank disclosure of medical history and symptoms by a patient to [her] doctor.’ " Phoenix Children's Hosp., Inc. v. Grant , 228 Ariz. 235, 237, ¶ 8, 265 P.3d 417, 419 (App. 2011) (quoting Lewin v. Jackson , 108 Ariz. 27, 31, 492 P.2d 406, 410 (1972) ). That purpose is served by protecting "communications made by the patient to [her] physician for the purpose of treatment." State v. Santeyan , 136 Ariz. 108, 110, 664 P.2d 652, 654 (1983).

B. Common–Law Exception for Crimes or Frauds.

¶ 18 Under a common-law exception to the attorney-client privilege, that privilege does not protect statements a client makes to a lawyer in committing a fraud. See Buell v. Superior Court , 96 Ariz. 62, 68, 391 P.2d 919 (1964) ("A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.") (quoting Clark v. United States , 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933) ). The State argues the common law similarly constrains the physician-patient privilege.

¶ 19 This court already has ruled, however, that no common-law exception for crimes or frauds applies to the physician-patient privilege. See Wilson , 200 Ariz. at 395, ¶ 11, 26...