Monday, August 26, 2013
The Shrink(ing) Privilege, Take 3: Supreme Court of Alaska Grapples With Psychotherapist-Patient Privilege
Pursuant to Alaska Rule of Evidence 504(b),
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional conditions, including alcohol or drug addiction, between or among the patient, the patient's physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
That said, Alaska Rule of Evidence 504(d)(1) provides that
As to communications relevant to the physical, mental or emotional condition of the patient in any proceeding in which the condition of the patient is an element of the claim or defense of the patient, of any party claiming through or under the patient, of any person raising the patient's condition as an element of that person's own case, or of any person claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or after the patient's death, in any proceeding in which any party puts the condition in issue.
So, if plaintiffs seek damages for mental anguish, does Rule 504(d)(1) apply, meaning that the plaintiffs have waived the privilege contained in Rule 504(b)? Courts in other states addressing a similar issue have split on the issue. In Kennedy v. Municipality of Anchorage, 2013 WL 4399118 (Alaska 2013), the Supreme Court of Alaska resolved this issue as a matter of first impression in The Last Frontier.In Kennedy,
Two former police officers brought claims against the Municipality of Anchorage for racial discrimination, alleging a hostile work environment in violation of state law. The officers claimed damages for mental anguish, and the Municipality sought discovery concerning the nature of their mental anguish claims. But the officers refused to comply with these discovery requests, invoking the physician and psychotherapist privilege.
This led the trial court and eventually the Supreme Court of Alaska to need to address the issue of whether raising a claim for mental anguish triggers the waiver contained in Alaska Rule of Evidence 504(d)(1). I have written about the divergent approaches taken by other states on this issue. For instance, as I noted in this post,
there is a split among courts, with some courts taking a "narrow view" of waiver and some courts taking a "broad view."...An example of a court following the narrow view is the District Court for the Northern District of Illinois, which found that a plaintiff would waive the privilege if she put her state at mind at issue by having her psychotherapist testify that she suffered from emotional distress, see Allen v. Cook County Sheriff's Department, 1999 WL 168466 (N.D. Ill. 1999), but that a plaintiff would not waive the privilege merely by seeking damages for emotional distress resulting from a defendant's misconduct, see Hucko v. CIty of Oak Forest, 185 F.R.D. 526 (N.D. Ill. 1999).
On the other hand, other courts take the broad view and hold that a plaintiff waives the privilege merely by seeking damages for emotional distress. See Jackson v. Chubb Corp., 193 F.R.D. 216 (D. N.J. 2000). Without any analysis, the court in Rose concluded that it would adopt the broad view and find that the psychotherapist-patient privilege was waived as to Rose's claims for emotional distress.
In Kennedy, the Supreme Court of Alaska noted this split and then reached the following conclusion:
We find the rationale underlying this narrower approach to waiver more persuasive. Garden-variety mental anguish claims are sufficiently limited in scope to alleviate the Municipality's concerns regarding fairness to defendants. If the officers do not allege that they have a medically diagnosable injury or that they have received treatment related to their emotional distress, the Municipality is entitled to bring this information to the jury's attention.
Moreover, wide-ranging inquiry into an individual's medical and psychiatric history could deter legitimate discrimination claims. Litigants should not be forced to choose between disclosing highly personal medical information and asserting claims for distress that any healthy individual would likely suffer as a result of discrimination. Our cautious approach should achieve an appropriate balance between a defendant's interest in fair disclosure, the privacy interest protected by the physician and psychotherapist privilege, and the societal values promoted by state law.