Psychotherapist-Patient Privilege in Kentucky Personal Injury Cases
[By Shawn E. Cantley, J.D., originally published in the March/April 2009 issue of The Advocate, the publication of the Kentucky Justice Association (the Kentucky Trial Lawyers' Association).]
Many attorneys and jurists believe, without much contemplation, that when a plaintiff in a personal injury action alleges mental suffering or emotional distress damages she places her mental state in issue and, consequently, waives any privilege relating to her mental health records. This is, generally, a mistaken belief. A plaintiff does not waive the psychotherapist-patient privilege by alleging ordinary mental suffering or emotional distress under the Kentucky Rules of Evidence. The key to proper analysis of the discoverability of a plaintiff’s mental health records turns on understanding the difference between the term “mental condition” (think PTSD, bi-polar disorder, or anorexia), as opposed to “emotional condition” (i.e., general emotional distress).
Obviously, the information contained in our clients’ mental health records can be sensitive, potentially embarrassing, highly private information. Our clients ordinarily do not want these confidential communications revealed. Records of this type also often contain information which can be exploited by the defense to wear-down the plaintiff in order to reach a more favorable settlement or to improperly prejudice the way jurors view the plaintiff under the guise of relevancy.
Under the Kentucky Rules of Civil Procedure, discovery is permissible if the information sought is: (1) not privileged; and (2) relevant to the claim or defense of any party. C.R. 26.02(1). Although the information sought to be discovered need not be admissible at trial, it must appear reasonably calculated to lead to the discovery of admissible evidence. Id.
In the seminal case on the psychotherapist-patient privilege, Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court of the United States stressed the significant interests underlying the protection of these highly private and confidential communications, and compared the privilege with the attorney-client and spousal privileges in contrast with the physician-patient privilege.
Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust. Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psycho-therapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.
Id. at 10 (citations omitted).
Prior to the adoption of the Kentucky Rules of Evidence, there were three unique statutory psychotherapy privileges—the psychiatrist-patient privilege (K.R.S. 421.215), the psychologist-patient privilege (K.R.S. 319.111), and the clinical social worker-patient privilege (K.R.S. 335.170(2)). These three privileges were repealed upon adoption of the Kentucky Rules of Evidence and codified into one "psychotherapist-patient" privilege under K.R.E. 507. See Commentary to K.R.E. 507, Evidence Rules Study Committee, Final Draft (1989).
Under K.R.E. 507, the psychotherapist-patient privilege protects (1) "confidential communications" (2) "between a patient, the patient's psychotherapist, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist" (3) "made for the purpose of diagnosis or treatment" (4) "of a mental condition." A psychotherapist is defined as a licensed psychologist, a medical doctor engaged in the diagnosis or treatment of a mental condition, a clinical social worker, or a registered nurse who practices mental health nursing. K.R.E. 507(a)(2)(A-D). It does not include a counselor—the counselor-patient privilege is entitled to less protection and is codified separately in the preceding rule, K.R.E. 506. Unlike a counselor-client communication, a protected communication between a psychotherapist and a patient is absolutely privileged. Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky. 2003) (the psychotherapist-patient privilege is “not subject to avoidance because of a ‘need’ for the evidence.”); Jaffee, 518 U.S. at 17-18 (“[m]aking the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege”).
This privilege may only be waived if the patient asserts his or her mental condition as an element of a claim or defense. K.R.E. 507 provides that the privilege is waived:
…
(3) If the patient is asserting that patient's mental condition as an element of a claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of a claim or defense.
K.R.E. 507 (c)(3) (emphasis added).
It is essential to note that the Kentucky Rules of Evidence very clearly draw a distinction between “mental condition” and “emotional condition.” See K.R.E. 506(d)(1) (counselor-client privilege) and 507(c)(3) (psychotherapist-patient privilege). Under the K.R.E., the counselor-client privilege is waived if the client asserts her emotional condition, mental condition, or physical condition as part of her claim. K.R.E. 506(d)(1). In contrast, however, the Rules notably omit “physical condition” and “emotional condition” as grounds for waiver with respect to the psychotherapist-patient privilege—providing for waiver of the latter privilege only where the patient is asserting her “mental condition,” as opposed to her “emotional condition,” as a claim or defense. K.R.E. 507(b)(3). In light of this significant difference between two successive rules in the K.R.E.—rules which were enacted contemporaneously—it is obvious that the legislature intended (1) to mark a clear distinction between “mental condition” and “emotional condition” and (2) to create a more circumscribed standard for waiver of the psychotherapist-patient privilege.
By asserting general emotional distress (e.g., physical pain and its consequent emotional suffering following an injury), a plaintiff is merely asserting that her emotional condition has been affected by her injuries. Unless the plaintiff asserts that the injuring event caused, aggravated, or aroused a specific mental condition, she does not waive the protection of confidentiality provided by the psychotherapist-patient privilege, and her psychiatric records are not discoverable.
