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Psychiatric Records Can Be Subject to Discovery in Pennsylvania

December 1, 2010

Pennsylvania – Health Care Liability

 Key Points:
  • Psychiatric records are privileged, but prevention from discovery is not absolute.
  • Pennsylvania recognizes numerous statutes and policy considerations restricting disclosure of mental health information.
  • Waiver of privilege occurs when a plaintiff places a mental health at issue in a pleading.

 

In a recent case involving a personal injury plaintiff with a previous psychiatric history, the Pennsylvania Superior Court addressed the issue of whether her complaint placed her mental health at issue so as to result in a waiver of any claim for privilege. The court in Gormley v. Edgar, 2010 Pa. Super. 71, conducted a thorough review of multiple contentions for protection advanced by the plaintiff but decided that the trial court order granting the defense Motion to Compel Special Consent for Release of Records was justified.

The plaintiff in Gormley brought suit in Philadelphia County to recover for injuries sustained in a September 2006 motor vehicle accident. During discovery, the defendant served a subpoena for records from Lower Bucks Hospital, which refused to provide them without the plaintiff's written consent. The plaintiff filed formal objections to the subpoena, which were stricken by court order. The plaintiff then produced the hospital records with the exception of a gynecological visit and an ER visit from 2007 and 2005, respectively. The plaintiff also produced a privilege log citing to the Mental Health Procedures Act ("MHPA"), 50 P.S. §7101, et seq., as the basis for withholding the ER records from 2005. The defendant moved to compel special consent for release of the withheld records. The court conducted a hearing, and the plaintiff requested that the court conduct an in-camera review of the records at issue. The court then denied the defendant's motion regarding the gynecological records but granted the Motion to Compel authorization for release of the ER records. The plaintiff then pursued an appeal.

The issue was accepted by the Superior Court as an appropriate appeal of the collateral order under PA.R.A.P. 313. Fundamental to its decision was the recognition that the appeal from the discovery order raised a question of application of privilege regarding mental health records and separate privacy and policy considerations.

The Superior Court then addressed the plaintiff's multiple bases for claiming that the trial court committed an abuse of discretion, with particular focus on certain arguments. The plaintiff claimed that the trial court order contravened various privileges, specifically the confidentiality provisions of the MHPA, contained in 50 P.S., § 7111(a), and the Mental Health and Mental Retardation Act of 1966 ("MH/MRA"), 50 P.S. § 4605. With respect to the MHPA, the court recognized the broad scope of the confidentiality protection and specifically cited the Supreme Court case of Zane v. Friend's Hospital, 836 A.2d 25 (Pa. 2003). However, the determination was made that the MHPA was inapplicable because the medical care at issue, an ER visit, was voluntary outpatient treatment and not covered by the Act. Likewise, the MH/MRA was determined to be inapplicable because under §4605, the prohibition against disclosure of information without authority or consent applies only to "a person who has been admitted, committed or detained pursuant to the provisions of the Act." Such was not the case with Ms. Gormley.

The plaintiff also argued that disclosure was inappropriate because of the statutory protections of confidential communications between a psychiatrist and patient under 42 Pa.C.S.A. § 5944. Importantly, the trial court agreed that the psychiatrist/patient privilege was applicable to the case but determined it had been waived because the plaintiff placed her mental health at issue in the lawsuit. In upholding this ruling, the Superior Court delineated the rationale for protection of such confidential communications and the "strong public policy designed to encourage and promote effective treatment and to insulate the client's private thoughts from public disclosure." Citing, Kalenevitch v. Finger, 595 A.2d 1224 (Pa. Super. 1991). The court specifically stated that it "holds this privilege in the highest regard," however, similar to an attorney/client relationship, the privilege is not absolute and may be waived.

The plaintiff persisted with her position and challenged the trial court's determination that she had waived the privilege by putting her mental health at issue in the case. Despite placing on the record that she did not intend to offer psychiatric or psychological testimony at trial, her statement was inconsistent with her complaint. In paragraph 12 of her complaint, which she refused to withdraw, she alleged that she "has been unable to attend to her usual duties and occupations, avocations and enjoyment of life all to her great loss, frustration and anxiety, and she may continue to be so disabled for an indefinite time in the future." The Superior Court agreed with the trial court that by pleading anxiety, a recognized mental condition, she placed her mental health at issue. [Note, however, that the Superior Court did not feel that more general averments of shock, mental anguish and humiliation, routine elements of non-economic damages, resulted in waiver of the privilege.] It went on to explain that "it would be clearly unfair for a party to seek recovery for anxiety if that mental health issue pre-dated the accident. Moreover, where a party seeks recovery for aggravation of a pre-existing mental health condition, records of prior treatment for that condition are discoverable."

The lessons from Gormley center on multiple competing interests including: generally liberal discovery practices; the strong protections afforded confidentiality of psychiatric treatment; the right to privacy; and the right of a named defendant to properly defend himself and obtain relevant information. Courts will factor these interests given particular circumstances, but what is clear is that the privilege associated with confidential psychiatric treatment information is not absolute. Defense practitioners should examine pleadings carefully to determine whether mental health issues are a focus of damage claims. If so, discovery should ensue, and Gormley supports appropriate inquiry and production.

*Kevin is a shareholder and Assistant Director of our Health Care Liability Department. He works in our King of Prussia, Pennsylvania, office and can be reached at (610) 354-8252 or tkfitzpatrick@mdwcg.com.

Defense Digest, Vol. 16, No. 4, December 2010

Affiliated Attorney

T. Kevin FitzPatrick
Director, Health Care Department
(610) 354-8252
tkfitzpatrick@mdwcg.com

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