Psychotherapist-Patient Privilege: Waiver

Does the plaintiff in an employment discrimination action waive the psychotherapist-privilege by alleging serious medical problems — here, cardiovascular disease, hypertension, gout, and obstructive sleep apnea — with a history of depression but does not specifically allege psychological injuries? Not under the D.C. Circuit’s opinion in Koch v. SEC, 489 F.3d 384 (D.C. Cir. 2007), which reasoned:

We are aware of only two cases in the federal courts of appeals addressing the question whether a party has waived the psychotherapist-patient privilege. See Doe v. Dairy, 456 F.3d 704 (7th Cir. 2006); Schoffstall v. Henderson, 223 F.3d 818 (8th Cir. 2000). Both were Title VII cases in which the plaintiff sought recovery for emotional distress.... Here, of course, we have a plaintiff making no claim of emotional distress but an acknowledged history of depression. Undaunted by the lack of precedent suggesting such an acknowledgment by itself puts the plaintiff's mental state in issue, the SEC takes the position that any time it is possible, as a matter of medical science, that a plaintiff's mental condition -- depression, anxiety, remorse, etc. -- may be a cause of his alleged physical condition, or even just aggravate that condition, the plaintiff necessarily has put his mental state in issue and thereby waived the psychotherapist-patient privilege. As a practical matter that position would confine the rule in Jaffee [v. Redmond, 518 U.S. 1 (1996)] to the facts of that case. But we are not authorized sub silentio to overrule a decision of the Supreme Court.

The court distinguished between the "narrow," "broad," and "middle ground" approaches to determining whether a patient has placed his mental state in issue, concluding that “a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression, for which he is not seeking recompense; nor may a defendant overcome the privilege by putting the plaintiff's mental state in issue. A plaintiff who makes no claim for recovery based upon injury to his mental or emotional state puts that state in issue and thereby waives the psychotherapist-patient privilege when, consistent with the Supreme Court's analogy in Jaffee, 518 U.S. at 10-11, he does the sort of thing that would waive the attorney-client privilege, such as basing his claim upon the psychotherapist's communications with him, see, e.g., Mueller & Kirkpatrick, Evidence at § 5.30; or, as with the marital privilege, "selectively disclos[ing] part of a privileged communication in order to gain an advantage in litigation" [citation omitted].

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