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Bar News - February 9, 2007

Medical Malpractice: Court Decisions Protect Privacy of Psychological Counseling Records



It is probably safe to assume that most plaintiffs’ lawyers have had occasion to deal with an injured person who has been through psychological counseling prior to the injury. During discovery, requests are often made for production of the person’s entire counseling record, regardless of whether those records are relevant to the injuries sustained. For many plaintiffs, the mere thought of having to reveal his or her private conversations to an adversary can cause significant humiliation, embarrassment, and anxiety.


Fortunately, three cases decided last summer herald a new willingness by the NH Supreme Court to protect plaintiffs and witnesses from forced disclosure of privileged psychological counseling records and diagnoses. The cases give much-needed guidance to lawyers and trial courts faced with arguments that psychological counseling records are relevant to the assessment of damages or witness credibility. They conclude that the records should not be disclosed unless absolutely essential to a fair trial, and prohibit challenges to credibility by disallowing cross-examination of mental health diagnoses where there is no proof the condition caused the witness to lie, hallucinate, or suffer from a severe mental illness (such as schizophrenia) that impaired the ability to tell the truth at the time of the events in question.


The first case is Desclos v. Southern New Hampshire Medical Center, et al. (June 9, 2006). In this medical negligence case, the defense sought blanket medical releases to obtain all of the plaintiff’s preexisting psychological counseling records. The trial court ruled that “the plaintiff’s psychiatric and psychological counseling records are clearly relevant to the issue of damages in regard to pain and suffering and loss of enjoyment of life, and are reasonably calculated to lead to the discovery of admissible evidence.”


On interlocutory appeal, the Supreme Court ruled that the trial court applied an incorrect standard for discovery of privileged material stating, “Relevance alone is not the standard for determining whether or not privileged materials should be disclosed.” The Supreme Court found that if the plaintiff made claims that her pain and suffering, loss of enjoyment of life, or loss of earning capacity included a clinically diagnosed disorder such as depression or post traumatic stress disorder, or if the claims involved expert testimony or other expert evidence regarding her mental suffering, this would waive her psychotherapist privilege. If, however, plaintiff claimed only generic mental and emotional pain and suffering, then such claims would not waive her psychotherapist-patient privilege.


This case appears to allow plaintiffs to protect their privileged counseling records by claiming “garden-variety pain and suffering,” and by not alleging intentional or negligent infliction of emotional distress, which would require expert testimony. If only ordinary pain and suffering is sought, there apparently is no right to compel production of blanket medical releases which can serve to embarrass, humiliate, or intimidate any injured person who has previously sought assistance through psychological counseling.


The caveat to this policy is that the trial court may decide to “pierce” the psychotherapist-patient privilege if the information is considered to be “essential.” To be considered “essential” the targeted information must be unavailable from another source, and there must be compelling justification for its disclosure. The test is quite detailed but still allows the trial court sufficient latitude for making judgments as to what is needed for a fair trial.


If the trial court determines the records are “essential,” it must review the records in camera, and limit disclosure of the privileged information to that which is relevant to the purpose for which the disclosure was ordered. Counsel should provide a proposed redacted copy of the records to assist the court in preventing the disclosure of irrelevant, embarrassing, or humiliating material.


An interesting issue arises when the defense claims that all psychological counseling records must still be disclosed to measure a loss of enjoyment of life claim. This argument, if successful, would effectively undercut Desclos’ efforts to protect confidentiality and would eradicate the protections for psychological records it took pains to create. Bennett v. Lembo, 145 N.H. 276 (2000) seems to answer this question by discussing the nature of loss of enjoyment of life damages, and making it clear such damages are part of a permanent injury which measures loss of customary physical activities.


There is no suggestion in Bennett that an evaluation of a person’s psyche should be undertaken to measure loss of enjoyment of life. Indeed, such an effort would raise difficult philosophical questions on whether a person who had sought counseling had a life that was less valuable than one who did not. There simply appears to be no case which has ever considered that psychological counseling records are relevant to loss of enjoyment of life claims. Therefore, there is a strong argument that such records are irrelevant to loss of enjoyment of life claims and should not be produced for discovery. In addition, it is arguable that the loss of enjoyment of life claim is equivalent to the “garden-variety” pain and suffering which does not waive the psychological records privilege as per Desclos.


The next two cases of note are State v. Fichera (June 9, 2006), and State v. McGill (August 1, 2006). Both cases deal with the issue of whether cross-examination should be allowed on matters of mental health on the basis that it is relevant to the issue of credibility. The Supreme Court ruled that cross-examination on mental health issues should not be allowed to challenge witness credibility unless the witness exhibited a disposition to lie or hallucinate or suffered from a severe mental illness such as schizophrenia that dramatically impaired the ability to tell the truth during the time of the events in question. The Supreme Court provided valuable guidance in these cases by ruling that cross-examination of a witness about a bi-polar condition is not relevant to credibility, even where the witness was not taking prescribed lithium. The Court found that there was no offer of proof that this condition alone caused the witness to lie or hallucinate, or that the condition dramatically impaired the ability to perceive and tell the truth at the time of the events in question. Thus, cross-examination about the witness’ psychological illness was irrelevant and not allowed.


These cases provide much-needed guidance for the courts and the lawyers as to what is deemed discoverable regarding mental health records, what is not discoverable, and what is necessary to conduct a fair trial when psychological counseling records are sought. A close reading of all cases is recommended for the active trial practitioner as the standards for discovery and evidentiary challenges have changed.


Attorneys Kevin M. Leach and Randolph J. Reis, of Reis & Leach in Manchester, concentrate their practice in medical malpractice law.



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