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Univ. of South Carolina School of Law

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Friday, November 12, 2010

Death Becomes Her: The Good Wife Partially Gets Psychotherapist-Patient Privilege Issue Right

This week's episode of "The Good Wife" had Alicia and company litigating a "test case" in which the allegation was that the defendant-pharmaceutical company's antidepressant caused the client's mother to kill herself and her husband. If the firm won, it would have opened the door for an easy class action lawsuit against the company and millions of dollars for both victims and the firm. The case, though, never went to verdict, with the company agreeing to a $35 million settlement. Why?

Well, part of the pharmaceutical company's defense (presented by terrific guest star Michael J. Fox) was that it wasn't the drug that caused the murder-suicide; it was the mother's belief that her husband was sleeping with their daughter. And, to establish this defense, the company called the mother's therapist to testify that the mother told him about these suspicions in the months before her death. This led to Alicia and company calling a former patient of the therapist to testify that the shrink engaged in sexual relations with her, prompting him to move his practice from Illinois to Wisconsin. This testimony leads the pharmaceutical company to enter into the settlement (although Fox's attorney later explains that this was always the company's plan).

So, why was the therapist allowed to testify about the mother-patient's suspicions? The show explains that while the psychotherapist-patient privilege normally deems such communications confidential and the privilege survives the patient's death in Illinois, it does not survive the patient's death in Wisconsin. Therefore, the therapist's move to Wisconsin meant that any statements made by the mother after the move were not protected by the privilege? So, did the show get it right? 

Wisconsin's psychotherapist-patient privilege is contained in Wisconsin Stat. Section 905.04(2), which provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor (emphasis added).

Meanwhile, Wisconsin Stat. Section 905.04(4(c) states the there is the following exception to the privilege:

There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense (emphasis added).

Thus, the show was correct that the psychotherapist-patient privilege did not cover the mother's statements to the therapist in Wisconsin. So, what about Illinois? Well, Illinois has a similar exception to its psychotherapist-patient privilege in 740 ILCS 110/10(a)(2):

Records or communications may be disclosed in a civil proceeding after the recipient's death when the recipient's physical or mental condition has been introduced as an element of a claim or defense by any party claiming or defending through or as a beneficiary of the recipient, provided the court finds, after in camera examination of the evidence, that it is relevant, probative, and otherwise clearly admissible; that other satisfactory evidence is not available regarding the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from any injury which disclosure is likely to cause (emphasis added).

So, there also should have been no problem with the therapist testifying with regard to statements made to him by the mother-patient while he was practicing in Illinois.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/11/good-wife-may-v-cusick246-wis2d-672-630-nw2d-277-tablewisapp2001-wisconsin-stat-905042.html

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