By Mark A. Abramson and Jared R. Green
Thanks in large part to the efforts of New Hampshire Trial Lawyers Association Treasurer Kevin Leach, who briefed and argued the case, and the firm of Burns, Bryant, Cox, Rockerfeller & Durkin, which filed an amicus brief on behalf of NHTLA, injury victims in this state have been granted broad protection against needless intrusion into their mental health counseling. In Desclos v. Southern New Hampshire Medical Centeri, Justice Richard Galway, writing for the unanimous New Hampshire Supreme Court, reversed a trial court order requiring a medical negligence plaintiff to produce her confidential therapy records that preexisted the injury for which she sought compensation. Below we detail the Desclos opinion and identify some of the practical points and ramifications of this ground-breaking decision.
II. The Desclos Decision:
In Desclos, the plaintiff alleged that she was rendered a quadriplegic when her medical care providers failed to recognize her symptoms of spinal cord injury.ii The damages that she sought compensation for included pain and suffering, loss of earning capacity, and loss of enjoyment of life.iii In discovery, the defendants sought all of Ms. Desclos’ psychiatric and psychological treatment records that preexisted her quadriplegia. The plaintiff refused to produce the records and the defense filed a motion to compel.iv
The trial court granted the defendants’ motion to compel ruling that the records at issue were “clearly relevant” to the plaintiff’s claims for pain and suffering and loss of enjoyment of life.v The court then denied the plaintiff’s motion for reconsideration adding that the plaintiff had waived her psychotherapist-patient privilege by making such claims.vi The court permitted the plaintiff to take an interlocutory appeal and the Supreme Court accepted the case.
On appeal, the court began by reaffirming its prior explanation of the societal importance of the psychotherapist privilege. Specifically, the court noted that the privilege “advances the public good accomplished when individuals are able to seek effective mental health counseling and treatment.”vii The court then stated that it was undisputed that the records at issue were protected communications under the New Hampshire psychotherapist privilege codified at RSA 330-A:32 and New Hampshire Rule of Evidence 503(b).viii
The court immediately held that the trial judge had erred by applying a mere “relevance” standard in ruling on the defendants’ motion to compel since “[r]elevance alone is not the standard for determining whether or not privileged materials should be disclosed.”ix The court then engaged in a comprehensive discussion of the appropriate standard to be applied.
With respect to the issue of implied waiver, the court reviewed its prior decisions in the context of the attorney-client privilege and concluded that,
a party waives the psychotherapist-patient privilege by putting the confidential communications at issue by injecting the privileged material into the case. If the privilege-holder has injected the privileged material into the case such that the information is actually required for resolution of the issue, then the privilege-holder must either waive the privilege as to that information or be prevented from using the privileged information to establish the elements of the case.x
With that standard in mind, the court then considered whether the trial judge had properly ruled that Ms. Desclos had impliedly waived her privilege by asserting damage claims for pain and suffering, loss of earning capacity, and loss of enjoyment of life.xi To do so, the court reviewed its prior decisions involving the attorney-client privilege and the physician-patient privilege.
The court first noted that it had found an implied waiver of the attorney-client privilege where a criminal defendant alleged ineffective assistance of counsel since that claim “required consideration of the very communications that he sought to protect: those between himself and his attorney.”xii Accordingly, in that case, the petitioner “injected his privileged communications into the case such that it was required for resolution of the ineffective assistance of counsel claim.”xiii
On the other hand, the court explained that it had upheld the physician-patient privilege in a case in which the State sought to use a blood sample from a DWI defendant.xiv In that case, the court had held that the defendant’s not guilty plea was insufficient to place the privileged material (the blood test result) at issue because “the defendant’s plea did not inherently require information regarding the blood sample to resolve the issue of his innocence…”xv
Relying on a decision from the Missouri Supreme Courtxvi, the court ultimately concluded that a civil plaintiff’s claim for physical injury does not result in an implied waiver of his or her psychotherapist-patient privilege.xvii In addition, the court held that the privilege is not impliedly waived when a plaintiff includes a claim for “generic” mental suffering that is incident to the physical injury.xviii
The court defined “generic mental suffering” as “mental suffering that is in the common experience of jurors, does not depend upon expert evidence, and does not exceed the kind of mental suffering that an ordinary person would experience in similar circumstances.”xix The court further explained that
Because generic mental suffering is in the juror’s common experience and does not depend upon expert evidence, it will not involve any privileged records from psychotherapy sessions. Thus, a damage claim for generic mental suffering that is incident to a physical injury will not waive the psychotherapist-patient privilege because a resolution of the claim will not require any privileged information.xx
Applying the foregoing rules to the case before it, the court noted that the primary injury alleged by Ms. Desclos was a physical injury and that the components of pain and suffering, loss of enjoyment of life, and loss of earning capacity were incident to the physical injury.xxi However, since the court did not have any more details about those claims, it remanded the case to the trial judge offering the following guidance:
If Desclos claims that her pain and suffering, loss of enjoyment of life, or loss of earning capacity include a clinically diagnosed disorder, such as depression or post traumatic stress disorder, or if the claims involve expert testimony or other expert evidence regarding her mental suffering, that will waive her psychotherapist- patient privilege. If, however, the mental suffering that Desclos claims involves only generic mental suffering, then such claims would not waive her psychotherapist-patient privilege.xxii
The court then addressed the scope of an implied waiver. Quoting from an earlier case construing the physician-patient privilege, the court emphasized that “implied waiver is only partial. It extends not to all information given in the course of treatment, but only to what is relevant to the plaintiff’s claim.”xxiii Thus, “[i]f the trial court determines on remand that Desclos impliedly waived her psychotherapist-patient privilege, the trial court may compel discovery of only those psychotherapeutic records necessary to resolve Desclos&rsqup; claims, which may require in camera review.”xxiv
Having resolved the issues relating to waiver, the court next turned to the matter of piercing the privilege if it has not been waived. Initially, the court noted that the psychotherapist-patient privilege is not absolute, but it must yield when the disclosure of the privileged information is considered “essential.”xxv Before the trial court can consider whether the privileged information is essential, however, the court stated that “the party seeking to pierce the privilege must first establish a reasonable probability that the records contain information that is material and relevant to the party’s defense or claim.”xxvi
If the defendant is able to make the required showing, the court continued, it may then argue to the trial judge that the information it seeks is essential. The first part of the defendant’s burden in this regard is to prove that the privileged information is unavailable from another source. The court employed a three part test to determine whether a reasonable alternative source of information is available: (1) whether the alternative evidence is admissible at trial; (2) whether the alternative evidence is sufficient to overcome a motion for directed verdict, when applicable; and (3) whether the party seeking to pierce the privilege has made adequate efforts to investigate alternative sources.xxvii The court specifically instructed trial judges to make explicit findings and rulings on each of these prongs.xxviii
The first part of the test speaks for itself. With respect to the second prong, the court explained that “if the alternative evidence is insufficient to survive a motion for directed verdict, then it is, for practical purposes, unavailable.”xxix The third prong is the most rigorous and it requires the defense to make an offer of proof demonstrating “substantial, good faith efforts to discover alternative sources of competent evidence.”xxx To amplify this point, the court added that “[c]onclusory statements that alternative sources are non-existent or futile to explore will not be sufficient. Nor is it sufficient to simply argue that the privileged information provides the best source of evidence sought or the least burdensome means to acquire such evidence.”xxxi
Even if the defense succeeds in convincing the trial judge that the information sought is unavailable from other sources, it still must establish a compelling justification for the information’s disclosure.xxxii In this regard, after reviewing prior decisions in other contexts, the court concluded that the defense can establish a compelling justification only by demonstrating that it would be deprived of a fair trial if the information at issue is withheld.xxxiii Since the record did not reveal the extent to which the withholding of the psychotherapy records would impair the defendants’ ability to fairly defend themselves, the court remanded this issue to the trial judge.
The court concluded its analysis, and the opinion, by instructing trial judges that, even if the defense satisfies its burden of proving an essential need, the judge must conduct an in camera review of the plaintiff’s records before ordering production.xxxiv The court emphasized that “[t]he trial court’s responsibility during this review is to limit the disclosure of privileged information to that which is relevant to the purpose for which the disclosure was ordered.”xxxv
III. Rules Arising from Desclos:
The Desclos decision provides the following black letter rules:
The plaintiff does not waive his psychotherapist-patient privilege when he claims generic pain and suffering, loss of enjoyment of life, and lost earning capacity incident to a physical injury;
The plaintiff’s claims are generic, and therefore do not result in an implied waiver of the psychotherapist privilege, if the claims do not include a clinically diagnosed disorder, such as depression or post traumatic stress disorder, and if the plaintiff does not offer expert testimony or other expert evidence regarding his mental suffering;
If the plaintiff does impliedly waive his privilege by making claims that involve a clinically diagnosed disorder or that require expert evidence, the trial court may compel discovery of only those records that are necessary to resolve his claims, which may require in camera review;
If the plaintiff has not impliedly waived his privilege, the defense may seek to pierce the privilege but only if it makes an initial showing sufficient to establish a reasonable probability that the records it seeks contain information that is material and relevant to their defense;
If the defense establishes a reasonable probability that the records contain material and relevant information, it must then demonstrate that the information it seeks is unavailable from another source;
To demonstrate that the information is unavailable from another source, the defense must establish that any alternative evidence would be inadmissible at trial or, when applicable, insufficient to overcome a motion for directed verdict, and that it has made adequate efforts to investigate alternative sources;
When the defense attempts to demonstrate that it has made adequate efforts to investigate alternative sources it cannot rely upon conclusory statements that alternative sources are non-existent or futile to explore, nor can it simply argue that the privileged information provides the best source of evidence sought or the least burdensome means to acquire such evidence;
If the defense is able to establish that the information is unavailable from another source, it still must establish a compelling justification for the information’s disclosure by showing that it would be deprived of a fair trial if the records are not produced; and
If the defense is able to demonstrate an essential need for the records, the trial judge must review them in camera to ensure that no irrelevant information is disclosed.
IV. Practical Points and Ramifications of Desclos:
It is rare indeed that a Supreme Court opinion on a procedural matter can have a direct impact on the lives of our clients. Desclos is just such a case. Before this decision was issued, those who were injured by the negligence of another were often victimized again by the small group of defense attorneys who all too often appeared to take pleasure in questioning the victim about unrelated mental health issues in an effort to beat them down, embarrass them, and dissuade them from pursuing full compensation. Desclos should put an end to that practice. Obviously, it will have no effect on the majority of defense attorneys who treat our clients with respect and who are able to represent their clients while maintaining their class and dignity.
Desclos is so important because the vast majority of our clients, like most other human beings (including lawyers), come to us with “baggage” that is wholly unrelated to the injuries that they have suffered yet embarrassing to them. Surely no one would argue that such people are somehow less deserving of the right to pursue a civil remedy that is guaranteed to all New Hampshire citizens, but until now they have been appropriately concerned about the extent to which their confidential mental health treatment will be opened up for all to see despite the fact that it has no real bearing on any of the issues in the case.
The decision by Justice Galway meticulously analyzes each of the important points and resolves them in an even-handed way based on New Hampshire precedent and compelling reasoning from other courts. The decision is notable for the multi-level protection it offers for those who need it most; particularly, the extraordinary requirement that trial judges review any otherwise discoverable records in camera to prevent the disclosure of unrelated material. However, it also ensures that no one can hide evidence that is necessary to a fair trial. It articulates a number of black letter rules that draw a clear line between what is appropriate and what is inappropriate in discovery. A review of decisions in other states shows that Desclos is the most comprehensive treatment of this subject to date and it provides by far the best guidance to the attorneys and trial judges who have to apply it on a daily basis.
In the course of the decision, the court also makes several related points that apply outside of the context of this particular discovery dispute. First, in discussing the definition of “generic” mental suffering, the court made it clear that expert testimony is not necessary to establish a right to recover damages for emotional distress when such emotional distress is incident to a physical injury and has not been labeled by a clinical diagnosis.xxxvi
Second, the court’s statement that, in the absence of a recognized privilege, witnesses have a duty to give all testimony that they are capable of giving,xxxvii should translate to the deposition context and prevent attorneys from interfering with questioning except to make a legitimate privilege objection.
And lastly, it is apparent that this decision is not limited to psychotherapy records. The precedents cited by the court and the reasoning employed demonstrate that all medical treatment records stand on the same footing as the therapy records at issue in Desclos. No longer should the defense be able to demand records from our middle-aged client’s teenage tonsillectomy in the hopes of finding something to use against him.
Justice Galway’s opinion in Desclos reflects the court’s recognition of the boundaries between what is truly necessary and appropriate to ensure fairness in civil litigation and what is unnecessary and intended to deprive a victim of his right to pursue a remedy. The carefully crafted decision should be an example for other courts in the United States and a wake up call to all who step over the line in an effort to win at all costs.
i.Decided June 9, 2006.
ii.Id., slip op. at 2.
vii.Id., slip op. at 3 (quoting In the Matter of Berg & Berg, 152 N.H. 658, 665 (2005)).
ix.Id., slip op. at 4.
x.Id., slip op. at 5.
xii.Id. (citing Petition of Dean, 142 N.H. 889 (1998)).
xiv.Id. (citing State v. Elwell, 132 N.H. 599 (1989)).
xv.Id., slip op. at 5-6.
xvi. State ex rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. 2006)(en banc).
xvii.Id., slip op. at 6.
xix.Id., slip op. at 7.
xxiii.Id. (quoting Nelson v. Lewis, 130 N.H. 106, 110 (1987)).
xxiv.Id., slip op. at 7-8.
xxv. Id., slip op. at 8 (citing State v. Kupchun, 117 N.H. 412, 415 (1977)).
xxvi.Id. (citing State v. Gagne, 136 N.H. 101, 105 (1992)).
xxvii.Id., slip op. at 9 (citing In re Grand Jury Subpoena (Medical Records of Payne), 150 N.H. 436, 442-43 (2004)).
xxxii.Id., slip op. at 10.
xxxiv.Id., slip op. at 11.
xxxvi.Id., slip op. at 7.
xxxvii. Id., slip op. at 3.
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