Appeal
from the Superior Court in Maricopa County The Honorable
Michael W. Kemp, Judge The Honorable Pamela S. Gates, Judge
No. CR2015-000299-001.
Opinion
of the Court of Appeals, Division One 244 Ariz. 217 (App.
2018).
Mark
Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals
Section, Michael T. O'Toole (argued), Assistant Attorney
General, Phoenix, Attorneys for State of Arizona
James
J. Haas, Maricopa County Public Defender, Mikel Steinfeld
(argued), Deputy Public Defender, Phoenix, Attorneys for
Chalice Renee Zeitner
Randy
McDonald, Perkins Coie, LLP, Phoenix, Attorneys for Amicus
Curiae Arizona Attorneys for Criminal Justice
JUSTICE LOPEZ authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and
JUSTICES PELANDER (Retired), TIMMER, and BOLICK, and JUDGE
BREARCLIFFE [*] joined.
OPINION
LOPEZ
JUSTICE.
¶1
The issue in this case is whether the Arizona Health Care
Cost Containment System ("AHCCCS") statutory
scheme, A.R.S. §§ 36-2901 to -2999.57, abrogates,
or creates an exception to, Arizona's statutory
physician-patient privilege, A.R.S. § 13-4062(4), in
cases of suspected AHCCCS fraud. We hold that it does in two
ways. First, the Arizona legislature's grant of broad
authority to AHCCCS to investigate suspected fraud
necessarily implies an exception to the privilege for
internal AHCCCS investigations and proceedings. And, second,
the AHCCCS statutes implicitly abrogate the privilege in the
criminal investigation and prosecution of suspected AHCCCS
fraud because the disclosure requirements in the AHCCCS
statutes and the legislature's clear intent to support
criminal prosecution of AHCCCS fraud preclude harmonizing the
physician-patient privilege with the AHCCCS statutes.
I.
¶2
Chalice Zeitner visited a Phoenix obstetrician for an
abortion in early March 2010, claiming she had discovered she
was pregnant after recently undergoing extensive radiation
and chemotherapy treatments for cancer. The obstetrician
referred her to a specialist, whom Zeitner told she had been
diagnosed with a malignant uterine tumor and was undergoing
chemotherapy. In late March 2010, Zeitner successfully
applied for AHCCCS benefits, stating on her application that
she had a serious chronic illness and her pregnancy was
high-risk and life-threatening.
¶3
On March 31, the obstetrician received an email seemingly
following up on a procedure the obstetrician had proposed to
Zeitner. The email, signed by "Al Zeitner,"
emphasized the urgency of the procedure, claiming Zeitner
would resume cancer treatments on April 9 and needed to have
her tumor removed within four weeks. A few days later,
Zeitner provided the obstetrician a letter purportedly
written by a doctor at the out-of-state 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." The obstetrician, relying on this information,
concluded that an abortion was necessary to protect
Zeitner's health. Based on his opinion, AHCCCS authorized
payment for the procedure, and the obstetrician performed the
abortion on April 9.
¶4
While performing a caesarean section on Zeitner for another
pregnancy nearly a year later, the obstetrician found no
physical evidence to support Zeitner's previous claims of
uterine cancer. Upon further investigation, he discovered the
letter delivered by Zeitner in early April was not authored
by the doctor whose name appeared on the letter. The
obstetrician reported his suspicions about Zeitner to her
health plan, which forwarded the matter to AHCCCS for
investigation.
¶5
A grand jury eventually indicted Zeitner on eleven counts,
including charges for defrauding AHCCCS, which generally does
not cover abortions except when necessary to save a
woman's life or to protect a woman's health.
See A.R.S. § 35-196.02(A)-(B). The State
alleged that Zeitner lied about having cancer so her abortion
would fall within the exception to that rule. The State also
alleged Zeitner committed identity theft and forgery by
impersonating a doctor recommending that she receive her
abortion. Zeitner pleaded not guilty to every charge and
moved to preclude all information her physicians obtained
from her, including records of her communications with the
physicians and their examinations of her, arguing they were
protected under Arizona's physician-patient privilege.
The State opposed the motions, arguing the privilege was
abrogated by statute, and the trial court denied the motions
before trial. After an eleven-day trial, in which the court
admitted Zeitner's medical records and allowed her
physicians to testify, the jury convicted Zeitner on all
charges.
¶6
Zeitner's sole argument on appeal was that the superior
court erred by admitting her medical records and allowing her
physicians to testify against her. The court of appeals
affirmed, holding that the AHCCCS statutes abrogated
"the [physician-patient] privilege . . . in cases of
suspected AHCCCS fraud." State v. Zeitner, 244
Ariz. 217, 219 ¶ 1, 224 ¶ 28 (App. 2018). The court
reasoned that while no common-law exception to the
physician-patient privilege applies in Arizona, the
legislature has created exceptions to the privilege.
Id. at 222 ¶ 22. The court noted that the
AHCCCS statutes require health-care providers to report
suspected fraud to AHCCCS, A.R.S. § 36-2918.01(A), and
to turn over patient records to fraud investigators, A.R.S.
§ 36-2903(I). Id. at 222-23 ΒΆ 23.
Therefore, the court concluded, ...