The prospect of having one’s mental health issues disclosed can scare off many potential plaintiffs, even those with a legitimate legal claim. Compelled disclosure of mental health information during trial may expose extremely private information to the general public. Further, the compelled disclosure of certain mental health information may hurt the plaintiff’s case.
In a personal injury case for which plaintiff’s pre-existing injuries were exacerbated, a cunning defense counsel may attempt to undermine the plaintiff’s statements and experiences by digging into past mental issues and thereafter indirectly assaulting plaintiff’s character. So long as the defense counsel can spark doubt as to the truth of plaintiff’s statements, they will have succeeded in harming the case.
Fortunately, California is highly protective of mental health records and of the psychotherapist-patient privilege. If you are concerned about your mental health records being disclosed, please read ahead. Depending on the circumstances of your case, the defendant may not be able to compel disclosure of your mental health records, and even if disclosure was compelled and the psychotherapist-patient privilege was waived, such waiver would – in all likelihood – be limited in scope.
Waiver of the Psychotherapist-Patient Privilege
California places a lot of importance on protecting psychotherapeutic confidentiality, and this can be seen by the fact that, unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions. As a general rule, the courts have largely accepted that the beneficial purposes of psychiatry can only be fully realized when the patient knows that their communications with the psychiatrist/psychotherapist are free from scrutiny – judicial or otherwise.
So, under what circumstances may the psychotherapist-patient privilege be waived?
If the patient-plaintiff has actively disclosed confidential mental health information to the defendant or defendant’s counsel, or in any legal proceeding relating to the case-at-issue, then the patient will likely be found to have directly waived their psychotherapist-patient privilege. As such, it is crucial that you do not reveal any psychiatric or medical information without your attorney’s guidance. Not all disclosure is the same, however. As the court in Roberts v. Superior Court (1973) wrote, “the mere disclosure of the existence of the psychotherapist-patient relationship does not reveal a significant part of the communication and thus does not constitute a waiver.” It is the disclosure of significant communications for which great care must be taken to avoid.
Making Mental State an Issue
Alternatively, if you bring a claim against the defendant in which you make your mental condition an issue, then the court may consider the psychotherapist-patient privilege waived. What sort of behavior indicates that the plaintiff has made mental health an issue in the case? The court in Valiavacharska v. Celaya (2011) summarized it elegantly: “The case law is clear […] that it is not seeking treatment but rather attempting to introduce evidence of such treatment that determines whether Plaintiff’s mental health is at issue.” In simpler terms, for mental health to be at issue in a personal injury case, the plaintiff needs to assert that their mental health was affected, and needs to seek damages for those mental health injuries.
Importantly, however, waiver of the psychotherapist-patient privilege is not absolute or broad. Remember, patient-plaintiffs still retain the more general right to privacy protected by the California and federal Constitutions.
Even if the court finds that you have waived your psychotherapist-patient privilege, California courts have interpreted such waiver very narrowly. “Any waiver made by virtue of putting a mental condition at issue must not be construed as complete or absolute, but limited.” (In re Lifschutz (1970)) Similarly, waiver by disclosure of confidential information must be narrowly construed and limited to matters “as to which, based upon the patient’s disclosures, it can reasonably be said that the patient no longer retains a privacy interest.” (Jones v. Superior Court (1981)).
Suppose that you have disclosed significant psychotherapeutic communications concerning your post-injury mental condition. It would probably be fair to say, in such circumstances, that you have waived your psychotherapist-patient privilege with regard to post-incident psychotherapeutic communications. It is not uncommon, however, for defense counsel to push further, possibly seeking to compel disclosure of your psychological history from before the incident. Fortunately, decades of California case law have consistently held that waiver must be narrowly construed. When a patient has waived their privilege, the patient does not thereafter lose all privacy interest in their mental health information.
Mere speculation concerning the relevance of your pre-incident psychological records would not be enough to overcome the psychotherapist-patient privilege – there must be a showing of direct relevance. Thus, the defense counsel cannot speculate as to your truthfulness, wellbeing, ethics, and other motivations, and subsequently use those speculations as justification for piercing the continuing psychotherapist-patient privilege as to your pre-incident psychotherapeutic records and communications. The court in Davis v. Superior Court (1992) put it best: “Generalized, unfounded accusations about a litigant’s character and psychological health do not suffice under California law to overcome the psychotherapist-patient privilege, as they strike at mental conditions that are only peripherally involved.”
Submitting to a Mental Examination
In some cases, the defendant may demand that you submit to a mental health examination under California Civil Code of Procedure section 2032. Compelling a plaintiff to submit to mental health examination is not so simple, however. Section 2032.320(b) requires that the defendant make a showing of exceptional circumstances in order to compel a mental examination, so long as the plaintiff makes certain stipulations.
The stipulations that the plaintiff must make in order to be shielded from a mental health examination demand are as follows:
No claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed; and
No expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.
In other words, the plaintiff must essentially stipulate that he or she will not be asserting a claim for mental and emotional damages beyond the normal “pain and suffering” associated with the injuries. Given these stipulations, a plaintiff involved in a low-speed automobile rear-end case cannot, for example, claim mental illness and post-traumatic stress disorder as a result of the low-speed rear-end accident, since that level of mental and emotional distress is not an expected, normal result.
Assuming that the plaintiff properly makes the above stipulations, the defendant must then make a showing of exceptional circumstances in order to compel a mental examination under section 2032. Vague, speculated mental conditions do not satisfy the exceptional circumstances requirement. As the court in Vinson v. Superior Court (1987) wrote, “the opposing party may not require [the plaintiff] to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.”
In order to protect your mental health privacy and to ensure the greatest possibility of success at trial, you will need a skilled personal injury attorney who is experienced in defending against overbroad intrusions into plaintiff’s mental health history.