DISCOVERY CASE OUTLINE
© Richard E. Best 1998-2006. all rights
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DISCOVERY
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CAL. LEGAL RESOURCES |
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PHYSICIAN - PATIENT
Evidence Code Sections 990 et seq
PSYCHOTHERAPIST - PATIENT
Evidence Code Sections 1010 et seq
PRIVILEGES
CONTENTS
ESSENTIAL ELEMENTS [EC994, 1014]
CASES
PURPOSE OF PRIVILEGE
LIBERAL CONSTRUCTION of privilege in favor of
patient
BURDEN OF PROOF on person asserting
privilege
DOCTOR-PATIENT RELATIONSHIP
CONFIDENTIAL COMMUNICATIONS
PROTECTED
Information
Transmitted between Dr. & patient
Confidential
Specific examples
PERSONS WHO MAY CLAIM
PRIVILEGE
JOINT HOLDERS
WAIVER
TENDER OF ISSUE BY PATIENT OR REP [Ev.C.996]
VOLUNTARY DISCLOSURE
INADVERTENT WAIVER
SCOPE OF WAIVER LIMITED
PERMISSIBLE DISCLOSURE
PROTECTION OF OTHERS [Evid.C.1024]
CONDITION OF PATIENT AN ISSUE and good cause shown [Ev.C.999]
ESSENTIAL ELEMENTS [EC994, 1014]
Confidential communication
Between patient and physician (psychotherapist)
Properly asserted
Binder v. Superior Court (1987), 196 Cal.App.3d 892
Blue Cross v. Superior Court (1976), 61 Cal.App.3d798
Carlton v. Superior Court (1968), 261
Cal.App.2d 282
City of Alhambra v. Superior Court (1980), 110 Cal.App.3d 513
City & County of San Francisco v. Superior Court (1951), 37
Cal.2d 227
David v. City of LA(1985), 173 Cal.App.2d 944
Hale v. Superior Court(1994), 28 Cal.App.4th 1421
Heller v. Norcal Mut. Ins. Co. (1994), 8 Cal.4th 30
Inabnit v. Berkson(1988), 199 Cal.App.3d 1230,1239
Jones v. Superior Court(1981), 119 Cal.App.3d 534
Kizer v. Selnik(1988), 202 Cal.App.3d 431
In re Lifschutz (1970), 2 Cal.3d 415
Luhdorff v. Superior Court(1985), 166 Cal.App.3d 485
Marcus v. Superior Court (1971), 110 Cal.App.3d 513
Paley v. Superior Court(1993), 18 Cal.App.4th 919
People v. Clark (1990), 50 Cal.3d 583
Pollock
v. Superior Court (2001), 93
Cal.App.4th 817, 113 Cal.Rptr.2d 453
Roberts v. Superior Court (1973), 9 Cal.3rd 330
Rudnick v. Superior Court (1974), 11 Cal..3d 924
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th
1083
Scull v. Superior Court (1988), 206 Cal.App.3d 784
Slagle v. Superior Court(1989), 211 Cal.App.3d 1309
Story v. Superior Court (People) (2003),109
Cal.App.4th 1007
Tarasoff v. Regents of University of California (1976) 17 Cal.3d
425
Vinson v. Superior Court (1987), 43 Cal.3d 833
See alsoConstitutional Right to Privacy Outline
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083, p.1092 [Waiver of privilege is not loss of privacy citing numerous cases]
Binder v. Superior Court (1987) [Dr. duty to assert; zone of privacy created by privilege; privacy invoked by implication by asserting privilege]
Paley v. Superior Court (1993), at p. 931-933 [broader protection than privilege]
Board of Medical Quality Assurance v. Gherardini (1979), 93 Cal.App.3d 69, 678
Jones v. Superior Court(1981), 119 Cal.App.3d 534
Roe v. Superior Court (1991), 229 Cal.App.3d 832
Scull v. Superior Court (1988), 206 Cal.App.3d 784 [discuss balancing privilege v public interest]
Encourage full disclosure from patient to physician to allow treatment
People v. Clark (1990)
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083Preclude humiliation from disclosure to 3rd parties
City & Co of San Francisco v. Superior Court(1951), 37 Cal.2d 227, 232
Preclude assertion when not consistent w/ purpose
Paley v. Superior Court
LIBERAL CONSTRUCTION in favor of patient
Roberts v. Superior Court (1973)
In re Lifschutz (1970)Story v. Superior Court (People) (2003),109 Cal.App.4th 1007
[Psychotherapist - Patient Privilege; writ issued to prohibit discovery in criminal prosecution of psych records from therapy ordered as condition of probation after prior conviction stating " …motive for participating in psychotherapy is immaterial to determining whether the psychotherapist-patient privilege attaches." Only issue was whether defendant was a "patient" within meaning of privilege; the court concluded:The opinion discusses related concepts: Burden of Proof on claimant re Physician/ Patient relationship; presumption of confidentiality; Shift of burden of proof to opponent to rebut preliminary facts or establish waiver or exception; Broad construction of privilege; narrow construction of exception or waiver; Discussion re concepts of disclosure to accomplish purpose of therapy and dangerous patient exception; Dominant purpose for therapy test rejected; if a purpose to treat, motive irrelevant
BURDEN OF PROOF
on person asserting privilege
Kizer v, Selnick(1988)
In re Lifschutz (1970)[burden on patient to limit claim & scope of tender to limit scope of waiver]
DOCTOR - PATIENT RELATIONSHIP [see comp provisions in other priv.e.g. AC]
Doctor: [EC 990, 1010]
Authorized or reasonably believed by the patient to be authorized to practice medicine in any state or nation
Clinical social worker part of psych teamLuhdorff (1985)
Student interns
People v. Gomez (1982), 134 CA3d 874
Professional corporations [EC 994(c)1014(c)]
Re: Psychotherapist - Patient privilege
Licenced psychologist
Licenced clinical social worker
Credentialed school psychologist
Licenced marriage, family & child counselor
Registered assistants etc. under supervision
Psychiatric registered nurse
Educational psychologist [EC 1010.5]Patient: [EC991,1011]
Consults or submits to exam by physician
For purpose of securing diagnosis or treatment of his conditionCity & County of San Francisco v. Superior Court (1951)[exam at request of atty for evaluation not for treatment; condition tendered as issue in lawsuit]
Re: psych includes scientific research
Motive or reasons for participating in psychotherapy irrelevant to privilege issue
Story v. Superior Court (People) (2003),109 Cal.App.4th 1007
[Psychotherapist - Patient Privilege; writ issued to prohibit discovery in criminal prosecution of psych records from therapy ordered as condition of probation after prior conviction stating " …motive for participating in psychotherapy is immaterial to determining whether the psychotherapist-patient privilege attaches." Only issue was whether defendant was a "patient" within meaning of privilege; the court concluded: "We agree with petitioner. The California Supreme Court has established that the motive for participating in psychotherapy is immaterial to determining whether the psychotherapist-patient privilege attaches. (Menendez v. Superior Court (1992) 3 Cal.4th 435, 454.) Therefore, the fact that a defendant was motivated to participate in psychotherapy as a condition of probation does not bar application of the psychotherapist-patient privilege to the records of that psychotherapy. Because we conclude that the records sought by the People are privileged, we will issue a peremptory writ of mandate as requested by petitioner."
CONFIDENTIAL
COMMUNICATION
PROTECTED
[EC 992,1012]
Obtained by an examination
Diagnosis and advice given by Dr.Hale v. Superior Court(1994)
Transmitted between Dr. & patient
In the course of the relationship
In confidence
For purpose of obtaining diagnosis etc.Kizer v. Selnick(1988)[claimed re health study]
Heller v. Norcal Mut. Ins. Co. (1994)Presumption of confidentiality: B/P on party contesting
Paley v. Superior Court
Story v. Superior Court (People) (2003),109 Cal.App.4th 1007
Means used , as far as patient knows, is confidential
Kizer v. Selnick [pursuit of dgs inconsistent w/expectation of privacy ; 89 participants in study became plaintiffs]
No disclosure to 3d persons except [see below re waiver]
those present to further the interests of the patient in the consultation
those to whom disclosure is reasonably necessaryfor the transmission of the information
for the accomplishment of the purpose of the consultation
Blue Cross (1976), [disclosure to insurance co. for payment reasonably necesarry for accomplishment of purpose]
Pollock v. Superior Court (2001), 93 Cal.App.4th 817, 113 Cal.Rptr.2d 453 [same citing Blue Cross et all]Rudnick v. Superior Court [when disclosure aims to promote the patient's treatment]
Names of patients may be protected
Scull v. Superior Court(1988) [psych]
Smith v. Superior Court (1981), 118 Cal.App.3d 136, 141-2[psych]
See also Rosso Johnson et al v. Superior Court(1987)[atty client]Compelled exam inapplicable
David v. City of LA(1985) 173 CA2d944[Psych - patient privilege doesn't apply to exam of policemen by WC doc.]
Ev.C. 1017 ct ordered examPhotograph of medical condition is w/in privilege
Binder (1987) 196 Cal.App.3d 892 [deletion of identifying info insufficient protection]
Holm v. Superior Court [re Atty.Client]Adverse reaction reports
Rudnick v. Superior Court ( 11 Cal.3d 924 [deletion of identifying information sufficient to protect patient ]
Fact of treatment (if it discloses general nature of condition)
City of Alhambra (1980), 110 Cal.App.3d 513 [Tr.Ct rev'd for compelling ans to interrogs re def. receipt of prior psych treatment. R. D. fact of treatment also discloses nature of condition for which treatment sought e.g. emotional or mental problem]
Roberts v. Superior Court (1973)[interrogs disclosing prior psych treatment not waiver]
Marcus v. Superior Court (1971), 110 Cal.App.3d 513 [ other patients who had undergone angiograms.]
Note: Disclosure of fact of treatment not a waiverSee below re waiver
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083
PERSONS WHO MAY CLAIM PRIVILEGE[EC 993&4, 1013&14]
Holder [ EC §§993, 1013 patient, guardian, personal rep]
Personal representative
Hale v. Superior Court(1994)
Person authorized by the holder
Implied authority
Blue Cross v. Superior Court at p. 800 [health plan operator]
Rudnick v. Superior CourtDr. at time of communication (unless no holder exists or Dr. instructed to waive)
Physician cannot waive [EC §§994-5, 1014-15]
Roberts v. Superior Court (1973)
City & County of San Francisco v. Superior Court (1951)Duty to claim unless no holder or instructed to waive
Inabit v. Berkson [Not if sdt & party takes no action Civ.Code 56.10(b)(3) exception]
See also CCP1985.3Insurance Company
Pollock v. Superior Court (2001), 93 Cal.App.4th 817, 113 Cal.Rptr.2d 453 [Although not an issue in the case, the defendant Insurance Company claimed the privilege of its Insured. "In an action alleging an insurer's bad faith termination of benefits under a disability policy, the plaintiff is not entitled to discover the names and addresses of other claimants whose psychiatric disability claims had been denied during a four-year period." since disclosure of the name would also reveal illness [ i.e. "psychiatric"] to plaintiff's lawyers. The decision was limited to a denial of production of names to plaintiff despite the offer of a protective order and limits on contacts including a proposed form letter to be sent by plaintiff's lawyer but suggested the information might be obtained via indirect means. Plaintiff had received answers to series of questions about the number of other ... insureds who were "receiving psychiatric disability benefits" and then were "denied further psychiatric disability benefits" over a four-year period. The opinion expressly left open the question of whether the insurance company might be required to contact the insureds. The court distinguished Colonial Life as involving "accident" policies that would not have revealed an ailment and not involving privileged material. It also noted that "Colonial did "not contend that the discovery ordered by the trial court was embarrassing or oppressive.]Protection by concealing identity of patient
See purpose of privilege above good cause
Physician - Patient re mother /child: doctrine of inseparability of in utero records
Paley v. Superior Court(1993), 18 Cal.App.4th 919[public policy prevents Mother from asserting her privilege to inseparable records when minor waived by tender
Jones v. Superior Court(1981), 119 Cal.App.3d 534
TENDER OF ISSUE BY PATIENT OR REP [Ev.C.996]
Communication relevant to issue concerning condition tendered i.e. related to claimed injury
Roberts v. Superior Court (1973) [speculation re psych basis for physical symptoms or mental component of physical injuries insufficient]
In re Lifschutz (1970)
Britt v. Superior Court
Slagel v. Superior Court (1989) 211 Cal.App.3d 1309
Koshman v. Superior Court(1980), 111 Cal.App.3d 294,298
Carlton v. Superior Court (1968), 261 Cal.App.2d 282 Discovery denied based on Physician -Patient privilege
and lack of waiver by tender. Writ issued to prohibit court ordered inspection by Plaintiff of
Defendant's medical records regarding intoxication at time of admission after accident based upon the
physician - patient privilege. Defendant had not tendered the issue of his non-intoxication and thus
waived the privilege by such tender.
Roberts v. Superior Court (1973)[must be voluntary & knowingly done; form consent strictly construed; med records produced by obtained & produced by other physician]
Inabnit v. Berkson (1988) [waiver by consent due to failure to act in face of notice of records subpoena]
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [Must be voluntary and knowing and done with sufficient awareness of relevant circumstances and likely consequences, citing Roberts case]See inadvertent waiver cases on the attorney-client privilege page
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [p. 1091 eavesdropper rule repudiated cite Menendez v. Superior Court (1992), 3 Cal.4th 435, 447-8; privilege may survive even broad disclosure]
In re Lifschutz (1970)[matters directly relevant to specific mental condition tendered; general claim does not tender entire mental history]
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [Avoid deterring general claim for mental suffering & damage; p.1093 'Any broader interpretation of the patient litigant waiver must be rejected because 'it might effectively deter many psychotherapeutic patients from instituting any general claim for mental suffering and damage out of fear of opening up all past communications to discovery. This result would clearly be an intolerable and overbroad intrusion into the patient's privacy, not sufficiently limited to the legitimate state interest embodied in the provision and would create opportunities for harassment and blackmail'. "
Subsequent proceedingsSan Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [Waiver in WC not waiver in subsequent proceedings; no knowledge of subseqent so so voluntary disclosure for that proceeding; privacy rights apply to protect
Necessary to accomplish purpose [EC 912(d)]
Roberts v. Superior Court (1973)[disclosure to other physicians]
Blue Cross (1976), [disclosure to insurance co. for payment reasonably necesarry for accomplishment of purpose] Pollock v. Superior Court (2001), 93 Cal.App.4th 817, 113 Cal.Rptr.2d 453 [same citing Blue Cross et al}Rudnick v. Superior Court (1974) [when disclosure aims to promote the patient's treatment]
Farrell L. v. Superior Court (People) (1988) 203 Cal.App.3d 521 , 250 Cal.Rptr. 25 "Thus, we conclude that the communication with other participants in group therapy is reasonably necessary for the accomplishment of the purpose for which the psychotherapist was consulted and, therefore, comes within the privilege."
Existence of relationship
Roberts v. Superior Court (1973)[interrogs disclosed prior treatment]
In re Lifschutz (1970)[disclosure of fact of treatment is waiver of that fact only]
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083Purpose of treatment
Roberts v. Superior Court (1973)
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [Must be disclosure of significant part of communication: Disclosing existence of relationship not waiver citing Roberts case; Revealing purpose of treatment not waiver citing Roberts]
PROTECTION OF OTHERS [Evid.C.1024]
Menendez v. Superior Court (1992) 3Cal.4th 435
People v. Wharton (1991), 53 Cal.3d 522, 555
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [Narrow exception limits disclosure to communications that trigger conclusion that disclosure necessary to prevent harm (People v. Wharton ); When factual predicate gone[danger], communication not protected? p.1092]
People v. Clark (1990)
Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 441
CHILD ABUSE REPORTING EXCEPTION
Child Abuse and Neglect Reporting Act § 11171
Roe v. Superior Court (Roe) (1991) 229 Cal.App.3d 832 , 280 Cal.Rptr. 380 W made allegedly defamatory statements to her psychotherapist who filed an allegedly false child abuse report against H. An evidentiary hearing in the superior court failed to establish that child abuse had occurred. Similarly, a dependency petition filed by the department of children's services in juvenile court was dismissed for lack of evidence.New action filed by H against W for defamation, malicious prosecution, negligent and intentional infliction of emotional distress, negligence, interference with visitation rights and conspiracy alleges W made false statements to psychotherapist who in turn filed a suspected child abuse report which allegedly repeats W's defamatory statements.
H seeks to take W's psychotherapist's deposition to authenticate psychotherapist's suspected child abuse report, to confirm that the information contained in the report originated from W, and to ascertain psychotherapist's oral report to department of children's services social workers who investigated the matter. Issues raised re right to privacy, competing interests protected by the Child Abuse and Neglect Reporting Act (§ 11164 et seq., hereinafter Act), the psychotherapist-patient privilege (Evid. Code, § 1010 et seq.), and the child abuse reporting exception to the psychotherapist-patient privilege.
Trial court granted H's motion on the ground that the limited information sought to be obtained from psychotherapist was not protected by the psychotherapist-patient privilege because that information had already been reported under the Act. The court held that the child abuse reporting exception under section 11171, subdivision (b) applies to this case.
CONDITION OF PATIENT AN ISSUE and good cause shown [Ev.C.999]
Slagle v. Superior Court(1989), 211 Cal.App.3d 1309 [Def. claims plaintiff eyesight caused accident & had heard Plt. tell Dr. he was blind]
See also Harabedian v. Superior Court(1961), 195 Cal.App.2d 26[med exam of def.; prod of records dropped at tr ct but ct ap denied production]