Garden State (Of Mind): Connecticut Federal Court Finds Psychotherapist-Patient Privilege Waived Even Under Narrow View Of Waiver

All federal courts and most states recognize some version of the psychotherapist-patient privilege, under which a patient has the privilege to refuse to disclose confidential communications made to a psychotherapist for the purpose of diagnosis or treatment. I have posted a couple of entries on this blog (here and here) about the two different interpretations of when a party waives the psychotherapist-patient privilege.

Under the "broad" view, "the mere allegation of emotional distress was viewed as sufficient to justify discovery into that party's psychological records to determine whether events other than the challenged conduct may have caused or exacerbated the party's distress."...

In contrast, under the "narrow" view, a plaintiff is not deemed to have waived the privilege by alleging only “garden variety” emotional distress....Courts using the narrow approach "must distinguish between garden variety claims and claims for more 'severe' emotional distress, such as those involving a diagnoses of a specific psychiatric disorder."..."Garden variety claims refer to claims for 'compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.'"

In In re Sims, 534 F.3d 117, 132 (2nd Cir. 2008), the Second Circuit became one of the courts adopting some version of the "narrow view" of waiver. Even under that "narrow view," however, the United States District Court for the District of Connecticut still found that the plaintiff had waived the psychotherapist-patient privilege in its recent opinion in Jacobs v. Connecticut Community Technical Colleges, 2009 WL 2046016 (D.Conn. 2009). 

In Jacobs, Gary Jacobs brought an action against Connecticut Community Technical Colleges, claiming that it discriminated against him on the basis of his sex and sexual orientation in violation of Title VII of the Civil Rights Act of 1964 and "that as a result of such discrimination, he 'has suffered and continues to suffer economic losses and emotional distress.'" After Jacobs commenced the action, he sought a protective order covering "all documents and information regarding medical and health records pertaining to the plaintiff."  

According to Jacobs, the psychotherapist-patient privilege covered such documents becaue while he alleged that he "suffered and continues to suffer economic losses and emotional distress" as a result of the discrimination, he did not plead a separate cause of action for emotional distress." And the court found that if it "were to confine its analysis to the pleadings alone it would conclude...that the plaintiff had not waived the privilege because his complaint assert[ed] no more than a garden variety claim for emotional distress."

The court, however, looked beyond the pleadings and noted that

in response to the defendant's interrogatories, the plaintiff identifie[d] Bruce S. Rothschild, M.D., Naomi Neurwirth, L.C .S.W., and Elliot Strick, M.A., L.M.F.T., as physicians, psychologists, or social workers from whom he "received medical (including psychiatric) treatment...for the injuries alleged in the Complaint."...The responses also state[d] that Strick treated him for "depression and anxiety caused by the plaintiff's work environment."...The responses further indicate[d] that "[p]rior to the events relevant to this complaint, the plaintiff has not suffered from any other physical or mental disease, disability or defect," that the plaintiff ha[d] not recovered from the injuries alleged in the complaint, and "presently suffers from the following conditions; insomnia, depression ... and an inability to focus and concentrate."...In addition, in response to the defendant's requests for production of documents, the plaintiff disclosed letters from two of his treating psychotherapists that were addressed to his attorney.

According to he court, these actions constituted waiver of the psychotherapist-patient privilege because "the plaintiff's interrogatory responses and disclosed letters identif[ied] diagnoses of specific psychiatric disorders. It is precisely such diagnoses which distinguish a claim for severe emotional distress from a mere garden variety claim."

-CM