The Pennsylvania Supreme Court has been clear that it holds the psychiatrist-patient privilege and confidentiality in mental health records in the highest regard. But what happens to that privilege and confidentiality when a plaintiff files a personal injury lawsuit that could conceivably call their mental health into question? Do allegations of emotional upset, pain or anguish automatically waive the privilege normally attached to mental health records? Is the defendant entitled to review all mental health records pertaining to that plaintiff in order to defend against the plaintiff's claims?

Until recently, there was only a single Pennsylvania appellate court decision addressing these important and complex issues. This has led to confusing and sometimes contradictory decisions by trial courts attempting to establish the boundaries for discovery of mental health records. Thankfully, in two recent decisions the Pennsylvania Superior Court has established important precedent regarding the scope of permissible discovery of plaintiffs' mental health records.  These opinions offer critical tools allowing lawyers to prevent the discovery of irrelevant and potentially embarrassing mental health records.

• Plaintiff's Mental Health Records

For lawyers representing plaintiffs in personal injury matters, it is not uncommon to receive discovery requests or notices of intent to serve subpoenas seeking to obtain extraordinarily broad and often irrelevant medical records. Attempts by defendants to subpoena medical records can be particularly problematic because it does not allow the plaintiff's counsel an opportunity to review the records first and to redact or withhold privileged mental health records. Unfortunately, until last month there was little law addressing the permissible scope of discovery of mental health records. The only case addressing the issue focused on what the plaintiff pleads in their complaint. Specifically, in Gormley v. Edgar, 995 A.2d 1197 (Pa. Super. 2010), the Superior Court suggested that if plaintiff only pleads general allegations of emotional upset, anguish, and humiliation, mental health records are not discoverable.  In contrast, the court in Gormley, supra, held more specific allegations of mental injury, severe emotional trauma necessitating treatment, or new or worsening psychological conditions could constitute waiver of the psychiatrist-patient privilege.