The Shrink(ing) Privilege: Vermont Court Takes Overly Broad View Of Waiver Under Psychotherapist Privilege

In Rose v. Vermont Mutual Insurance Company, 2007 WL 3333394 (D. Vt. 2007), Christine Rose was involved in a car accident and settled her claim with the other driver for his insurance policy limit of $50,000.  Rose then demanded additional damages from her own insurance company, alleging damages such as "emotional distress." Id. at *1.  Her insurance company countered that Rose had a historic problem with depression and thus requested disclosure of persons who saw Rose for her depression and a copy of their records. See id.

Vermont Rule of Evidence 503 contains a psychotherapist-patient privilege, which states that a patient has the privilege to refuse to disclose confidential communications made for the purpose of diagnosis or treatment, and title 12, section 1612 of the Vermont Statutes Annotated prohibits a mental health professional from disclosing confidential information unless the privilege is waived.  What the district court in Rose had to decide was whether Rose waived the privilege by seeking damages for emotional distress.

The court cited to Ruhlmann v. Ultster County Department of Social Services, 194 F.R.D. 445 (N.D.N.Y. 2000), for the proposition that there is a split among courts, with some courts taking a "narrow view" of waiver and some courts taking a "broad view." Id. at *2.  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.

A closer look at Ruhlmann, however, makes it appear as if the court in Rose skimmed that case and cited it as its main authority but failed read it in its entirety.  After discussing the split among courts taking the narrow view and the broad view, the court found that even those courts taking the borad view find the privilege waived only when a plaintiff makes specific and significant claims of emotional harm and that the privilege is not waived when a plaintiff merely makes a "garden-variety" claim for emotional distress damages. Ruhlmann, 194 F.R.D. at *49.  Therefore, a plaintiff like Rose who merely seeks damages for emotional distress would not waive the privilege while a plaintiff seeking damages for mental harm, including "anxiety, paranoia, depression, and hallucinations," would waive the privilege.  Thus, by citing to Ruhlmann and yet failing to distinguish it (or provide any analysis), the Vermont court erred.

-CM