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Court Construes Exception to Psychotherapist-Patient Privilege

By Sherry L. Talton, Litigation News Associate Editor – October 10, 2009

Plaintiffs alleging emotional distress should take heed of the U.S. District Court of Connecticut’s recent decision in Jacobs v. Connecticut Community Technical Colleges [PDF], finding a so-called “patient-litigant” waiver of the psychotherapist-patient privilege.


In 1996, the U.S. Supreme Court established, in Jaffee v. Redmond [PDF], a federal privilege protecting a patient’s communications with his or her psychotherapist under Federal Rule of Evidence 501 [PDF]. Although every state had already established some sort of protection for psychotherapist records by that time, the federal circuits that had considered the issue prior to the Jaffee decision were split.


Jacobs provides an in-depth discussion of the most frequently-invoked exception to the psychotherapist-patient privilege—the “patient-litigant” exception—in a context that may prove instructive to litigators.


Jacobs arose from an employee’s allegations that his employer’s gender and sexual orientation discrimination caused him to suffer emotional distress. After the defendant subpoenaed records of three of the plaintiff’s mental health caregivers, the plaintiff moved to quash those subpoenas by arguing that the records were protected by the psychotherapist-patient privilege. The defendant countered by asserting the patient-litigant exception to the privilege, arguing that the plaintiff had waived his right to the privilege by putting his mental state at issue in the case.


In resolving the dispute over the records, the Connecticut court recognized that the Second Circuit refuses to pierce the privilege in cases in which the plaintiff has alleged only “garden variety” emotional distress. As the court explained, garden variety emotional distress is “a claim of emotional injury for damages ordinarily associated with a conventional claim for pain and suffering.”


Although there is no bright-line rule defining garden variety emotional distress, the court indicated that a plaintiff asserting a diagnosis of a more specific psychiatric disorder or pleading of a separate cause of action for emotional distress would waive the privilege.


Other circuits take a broader view of the patient-litigant exception and find that a plaintiff waives the privilege by alleging any type of emotional distress.


Despite the narrow construction of the patient-litigant waiver in the Second Circuit, the Jacobs court denied the plaintiff the benefit of the privilege because he put his mental state in issue through his responses to discovery requests.


Specifically, the plaintiff answered an interrogatory by stating that the mental health professionals had treated him for depression and anxiety resulting from the defendant’s conduct. Plaintiff also produced letters from two caregivers confirming that diagnosis.


Lessons from Jacobs
Art Justice, Florence, SC, cochair of the ABA Section of Litigation Health Law Litigation Committee, was not surprised by the ruling. “Plaintiff’s counsel can fairly expect records to be made discoverable when (1) the plaintiff discloses the treating physician or therapist as an expert, (2) their treatment is used to justify the damage claim and is a part of the medical damages, and (3) when the discovery responses indicate that the plaintiff is claiming the therapy/treatment was brought about by the defendant’s tortious conduct,” Justice says.


“[P]rior to bringing suit, and certainly before answering discovery, plaintiff’s counsel would be well advised to determine all such treatment undergone by their client, carefully review those records, and then determine if it is better to seek damages arising out of the therapy/treatment, or based on what is in the records, seek only general emotional damages, and not place plaintiff’s specific treatment in to the equation,” Justice says. 


“In those cases where the plaintiff's treatment is not likely to advance the damages claim, the attorney can seek only the ‘garden variety’ of emotional damages and they are more likely to be successful in keeping the records privileged and not discoverable,” he advises.


“There is a distinction between psychotherapy medical records and psychotherapy notes as defined by HIPAA,” notes Nestor J. Rivera, Atlanta, cochair of the Section’s Health Law Committee. “A request for each category of documents may be treated differently under HIPAA and state privacy law,” Rivera says.


Either way, litigators from both sides of the bar would be wise to understand the contours of the privilege.


Keywords: Privilege


 

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