By Josh Silk
The mental health privilege1 is one of, if not the most robust privilege in Georgia. It survives the patient’s death.2 It is not waived by silence.3 It is not waived by the presence of a necessary third party who witnesses the communication.4 A patient’s communications with a mental health provider are absolutely privileged, and yet, we often see discovery requests seeking to invade the privilege.
Say you represent a client with a history of depression. Due to the defendant’s conduct, the client’s depression has worsened. You bring a claim seeking damages for the client’s emotional distress. The defense serves discovery requests regarding the client’s mental health history, communications with mental health providers, and mental health treatment. You don’t want your client’s entire mental health history to become public, so you object. The defense responds with a 6.4 letter arguing that the privilege has been waived because you put the client’s mental health at issue by filing the complaint.
You’ve raised a claim for emotional distress so the information requested likely is relevant to the injury and perhaps causation. But defendants aren’t entitled to discover relevant information if a privilege applies (this article will not delve into the application of the mental health privilege generally, so let’s assume that in this case the information is privileged). While the client’s mental health records and communications may be relevant, they are privileged, and the question then is whether that privilege has been waived.
To waive the privilege, the patient must take “an affirmative action obviously giving up the confidentiality of communications” with themental health provider.5 The defense says that raising the claim for emotional distress was such an affirmative action and waived the privilege just like it would with a medical condition. But not so fast. The privilege is not waived merely by seeking damages for emotional or mental distress, and thus, putting a mental condition at issue in a lawsuit does not waive the mental health privilege. Longstanding Georgia case law supports this: “[T]he fact that appellant was seeking to recover damages for injuries of a mental and emotional nature would not constitute a waiver of the privilege.”6 So you should reply that you will stand on the privilege because filing a complaint doesn’t waive the mental health privilege. Keep in mind that the fact of treatment or hospitalization and the dates thereof are not privileged, and a request for that information only would not invade the mental health privilege.7
What if, instead of mental health records, the defense requests the client’s medical records? The defense knows they can’t get mental health records, but a primary care physician is not a mental health provider, and the right to privacy in medical records can be waived to the extent the condition is placed at issue in that litigation.8 In come the discovery requests, the 6.4 letter, and threats of a motion to compel. The defense attorney is already practicing his closing argument about how the client cannot possibly have severe emotional distress if she never even mentioned it to the primary care physician. Are your client’s medical records discoverable now? The answer is in your complaint. Did you place a medical condition at issue? Did you allege insomnia or weight loss, for example? If you’ve alleged only emotional distress or mental anguish, without a medical component, then you should argue that a medical condition was not placed at issue in the litigation, and thus, the client’s right to privacy has not been waived.9 You should stop that fishing expedition in its tracks.
The caveat to all this is that, if you’ve raised a claim for emotional distress, then at some point you will need to produce evidence of your client’s injury. Failing to do so could result in summary judgment or a directed verdict. But if you call the client’s mental health practitioner to testify and provide that evidence, then you will have waived the privilege.10 Tread carefully, but your client’s testimony alone might be sufficient to survive summary judgment.11 Either way, understanding that the mental health privilege is strong, and that it stands unless and until you choose to waive it, is half the battle. ●
About the Author
1 The term “Mental Health Privilege” is meant to encompass the privileges set forth at O.C.G.A. § 24-5-501(a)(5)-(8).
2 Hopson v. Kennestone Hosp., 241 Ga. App. 829, 831 (1999) (“the privilege does not end upon the death of a patient”).
3 Id. at 831. (“nowhere in the case law . . . is some failure to act – some omission by the patient – deemed to be a waiver of the privilege”).
4 Sims v. State, 251 Ga. 877, 881 (1984) (decided under former statute).
5 Hopson, 241 Ga. App. at 831.
6 Wilson v. Bonner, 166 Ga. App. 9, 16-17 (1983) (decided under former statute).
7 Johnson v. State, 254 Ga. 591, 597 (1985) (decided under former statute).
8 Baker v. Wellstar, 288 Ga. 336, 338 (2010) (the right to privacy is waived only “to the extent such information is relevant to the medical condition the litigant has placed in issue in the legal proceeding.”).
9 Id.; King v. State, 272 Ga. 788, 789-90 (2000).
10 Fields v. State, 221 Ga. 307, 308-309 (1965) (decided under former statute).
11 See Jefferson v. Houston Hosp., Inc., 336 Ga. App. 478, 485 (2016) (failure to seek treatment is a factor in determining whether emotional distress is severe, but is not required); see also Abdul-Malik v. AirTran Airways, Inc., 297 Ga. App. 852, 858 (2009) (granting summary judgment against plaintiff and finding that testimony that plaintiff could not sleep and gained weight, but did not seek treatment did not demonstrate “severe” emotional distress); but see Sevcech v. Ingles Markets, 222 Ga. App. 221, 223-224 (1996) (holding there was a jury question as to whether emotional distress was sufficiently “severe” where plaintiff testified that thinking of the incident “makes him sick, that he trembles when he thinks about it, and that he is full of shame and cannot look at his children.”).
While the client’s mental health records and communications may be relevant, they are privileged, and the question then is whether that privilege has been waived.