Courtney Barbacane, with Burns White.

In 1989, the commonwealth of Pennsylvania passed Act No. 1989–96, which addresses confidential communications made to psychiatrists or licensed psychologists. The purpose of the statutory psychologist/patient privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure.

When are confidential communications between a mental health provider and a client subject to discovery? This article will help provide some insight.

Legal Background

Generally, no psychiatrist or psychologist can be examined in any civil matter regarding information acquired in the course of professional services on behalf of a client without the client's written consent. The confidential communications between a psychologist or psychiatrist and his client are similar to those provided by law between an attorney and client, see 42 Pa. C.S.A. Section 5944.

By preventing the latter from making public any information that would result in humiliation, embarrassment or disgrace to the client, the privilege is designed to promote effective treatment and to insulate the client's private thoughts from public disclosure, as in Commonwealth v. Kyle, 367 Pa. Super. 484, 533 A.2d 120 (1987). The protections of Section 5944 apply to testimony and to records created in the course of the confidential relationship.

This privilege is not absolute, however, and may be waived. In fact, the privilege of nondisclosure of confidential records must be asserted during discovery proceedings or it will be waived. Once the party asserting the psychotherapist-patient privilege shows that the privilege is properly invoked, the burden shifts to the party seeking the disclosure to show that disclosure of the information will not violate the privilege.

However, there is an important distinction to be drawn in cases where a plaintiff merely seeks to recover damages for mental anguish versus those placing his or her mental health at issue. Where mental injuries are claimed, a plaintiff confronted with a discovery request must either waive the privilege and release his or her psychiatric records or be barred from pursuing that claim, see Loftus v. Consolidated Rail, 12 Pa. D. & C.4th 357 (1991).

Allegations of severe emotional trauma or other mental health conditions that require treatment, may result in a waiver of the statutory privilege. This could lead to a disclosure of confidential communications related to the treatment of those conditions. Further, where a party alleges that there was an aggravation of a preexisting mental health condition, the mental health records for that particular condition are discoverable.

So, if a plaintiff claims specific damages for anxiety or some other recognized mental health disorder requiring treatment, plaintiff:

• Places his or her mental health at issue;
• Waives the statutory privilege; and
• Subjects his or her mental health records to disclosure.

See Gormley v.  Edgar, 995 A.2d 1197, 1205 (Pa. Super. 2010).

However, general averments of shock, mental anguish and humiliation alone do not place mental condition at issue or result in a waiver of privilege. If a plaintiff seeks merely to recover damages for mental anguish or distress solely as a component of non-economic damages, the plaintiff has not placed his or her "mental health at issue." This would not result in a waiver of the privilege set forth in 42 Pa. C.S. Section 5944.

Application to Medical Malpractice Cases

How does this generally unfold in medical malpractice cases? While all cases vary, there are similarities that emerge. In addition to the claim for personal injury, a plaintiff will allege initially that, as a result of the malpractice, he has suffered mental anguish, severe emotional distress, depression or anxiety. Discovery follows, with notices of intent to issue subpoenas for the plaintiff's mental health records. These notices are almost always met with objections, whether based on relevance, admissibility, embarrassment, confidentiality or privilege.

The proper response to such objections is to note that a party may obtain discovery regarding any matter, not privileged, which is relevant to the pending action. This holds true whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.

At this point, the plaintiff's counsel must decide whether to claim specific damages for a mental disorder requiring treatment, put his client's mental health at issue in the case, or concede that they are only seeking to recover damages for mental anguish as a component of noneconomic damages. Undoubtedly, in almost every case where the plaintiff has a history of a preexisting mental health condition, his counsel decides to forego the claim for specific damages. The risk of uncovering unfavorable information pertaining to the client outweighs any potential benefit.

In order to resolve this discovery dispute, plaintiff's counsel can stipulate, or otherwise advise the court, whether they intend to recover damages for mental anguish or distress as a component of noneconomic damages only. Under this scenario, the subpoenas should be withdrawn because the plaintiff's mental health is no longer at issue in the case.

Notably, when the psychotherapist-patient privilege applies, the privileged material may not even be subjected to an in camera review by the trial judge. If a trial court intervenes and orders an in camera review of a patient's mental health records, where it is claimed that such records are absolutely privileged pursuant to statute, it is an error of law, and subject to immediate appeal. See Com. v. Johnson, 663 A.2d 720 (Pa. Super. 1995).

All factors considered, if the plaintiff wants to pursue specific damages for a recognized mental health disorder, he or she needs to be counseled and made aware that their mental health records will be disclosed.

Conclusion

In all personal injury cases—and especially medical malpractice—it is prudent for all parties to evaluate the nature and extent of mental injuries alleged by the plaintiff; such an evaluation necessarily affects the allegations to be included in a Complaint, the scope of discovery, and recovery of damages.

Courtney C. Barbacane is a seasoned trial attorney at Burns White. She defends doctors, hospitals and long-term care facilities in medical malpractice and professional liability matters throughout state and federal courts in Pennsylvania and New Jersey.