The issue of the discoverability of one’s health records took center stage in the matter of Gormley v. Edgar, 2010 PA Super 71, a recent case heard by the Superior Court of Pennsylvania. The discovery process is designed to facilitate the exchange of information between the parties to litigation. Generally speaking, the standard of what can be requested and required to be revealed in discovery by a party is rather liberal. However, when psychiatric records are the subject of the discovery requests, there are significant limitations as to what a party can request.
There are two competing interests at work when requesting psychiatric records. The first interest is the party’s interest in the privacy of his psychiatric records. The second interest is the ability for an adverse party to adequately defend himself and, in the interest of fairness and equity, be able to secure sufficient documentation for that defense. These two interests come into conflict, obviously, when the documentation sought by one party consists of the documents the other believes to contain private information that he has a right to protect.
The right to the privacy of one’s psychological records has been codified as 42 Pa.C.S.A. Section 5944. The text of Section 5944 is as follows: “No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services on behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.”
It is interesting to note that when 42 Pa.C.S.A. Section 5944 was passed in 1976, it only made reference to psychologists and their records, and not psychiatrists and their records. Therefore, perhaps counter-intuitively, the Court drew a distinction between psychological records and psychiatric records. The Court has ruled that as the statute specifically refers to psychologists, and could have easily included psychiatrists, the legislature clearly intended to exclude psychiatrists and other sorts of mental health counselors from the privacy guaranteed by Section 5944 (see Miller v. Colonial Refrigerated Transportation Incorporated, 81 F.R.D. 741 (1979). However, in 1989 42 Pa.C.S.A. Section 5944 was revised to include psychiatric records.
The privacy guaranteed by Section 5944 is reinforced by the discovery standards set by Pa.R.C.P. 4003.6 which follows: “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from: (1) the attorney’s client; (2) an employee of the attorney’s client, or (3) an ostensible employee of the attorney’s client.” Therefore, on the strength of these two statutes and the cases decided thereunder, there is, at least in general, a guarantee of privacy for one’s own psychological and medical records. Obviously, one could argue that the treatment provided by a psychiatrist or other mental health professional is, at least in spirit, “medical” treatment inasmuch as someone seeks the help for healing of some sort.
Despite the guarantees above, and unfortunately for a party attempting to suppress the records describe above, the Court has made it clear that the privacy of such records is not absolute in certain circumstances. One of those circumstances is when a party raises psychological injuries as damages in a case. If a party raises psychological issues, the Court has effectively ruled that doing so functions as a waiver of the party’s privacy over one’s psychological records. To put it simply, a party “waive[s] her statutory privilege by filing [a] lawsuit and claiming psychological damages.” Helper v. Alvis, 63 Pa.D.&C.4th 129 (2003) and Premack v. J.C.J. Ogar, Inc., 148 F.R.D. 140 (E.D.Pa. 1993). Therefore, “in order to pursue psychological damages, the plaintiff must accede to discovery with respect to mental-health care providers with whom he or she has consulted.” Loftus v. Consolidated Rail Corp., 12 Pa.D.&C.4th 357 (1991). If the party continues to refuse to produce the records, it will be at the pain of dismissal of any and all claims for psychological injuries. Id.
The raising of a mental health condition as damages flowing from an accident was the issue raised in Gormley v. Edgar. The Plaintiff in the aforesaid matter alleged she suffered from anxiety as a result of an accident she claimed was caused by the Defendant. The Court ruled that by so doing she placed her mental health condition directly at issue, rendering her mental health records, at least in part, discoverable. The Court also ruled that if one alleges the aggravation of a pre-existing mental health condition, records of prior treatment for the same are also discoverable. Similarly, the Court finally ruled that mental health records predating the accident at issue are also potentially discoverable as a defendant may wish to prove that the mental health condition alleged pre-existed whatever a plaintiff alleges is its cause. Again, as stated above, these records only become discoverable when a party raises his mental health as an issue in the case.
Although, in general, a party must reveal his psychological records if one raises psychological injuries, the waiver described above is not completely unfettered. The Court recognizes that psychological records are extremely sensitive and the discovery process could inappropriately reveal irrelevant psychological issues of some sort. The Court has made at least three different options available in an effort to adequately, though perhaps imperfectly, balance the two conflicting interests at work in given a matter. The three options are as follows: (1) have formal discovery in the presence of counsel which would afford counsel the opportunity to object on the basis of relevance and other appropriate reasons. Marek et al. v. Keyer, M.D., et al., 733 A.2d 1268 (Pa.Super.1999). Presumably, a deposition of the psychologist(s) would be scheduled, who would be instructed to bring his file regarding a client with him to the deposition. Over the course of the questioning, the records would be produced as appropriate and the attorney would object as appropriate; (2) request the Court to conduct an in camera inspection of the records and if the records do not reveal the information one believes it does, the records will remain protected by Section 5944. Commonwealth v. Kyle, 367 Pa.Super. 4848 (1987); and (3) request the Court to order its own psychological evaluation under Pa.R.C.P. 4010(a)(3). Of course, this remedy would implicitly require the client to permit his records to be reviewed by the independent psychologist and would, presumably, have to respect the conclusions reached in the Court ordered psychological report. Obviously, more than either of the above options, this option carries with it the greatest risk of any undesirable information being revealed and used against the client.
In the final analysis, it appears that a party cannot be forced to reveal his psychological records to an opposing party. However, if he wishes to proceed with claims alleging psychological damages, that party may not attempt to suppress them. Instead, the opposing party has a right to see those records so that he may have a fair and equitable opportunity to raise a proper defense the claims leveled against him. The client has the options of withdrawing the psychological claims or moving forward and allowing the records to be revealed to the opposing party. If the client elects to move forward, he may have one or more of the three options above to mitigate the loss of privacy and successfully suppress, at least in part, his psychological records.
Originally published in Upon Further Review on June 8, 2010 and can be seen here and on my website here.