Opinion
Rehearing Denied Nov. 18, 1971.
Opinion on pages 652 to 658 omitted
HEARING GRANTED
Proceeding dismissed March 30, 1972, by request of counsel.
Appeal dismissed.
[97 Cal.Rptr. 880] Crosby, Heafey, Roach & May, Professional Corp., Charles W. Denny, Oakland, for petitioner.
Neyhart, Grodin, Beeson & Jewel, Peter F. Elkind, Oakland, for real parties in interest.
Kurt W. Melchior, Nicholas S. Freud, Severson, Werson, Berke & Melchior, San Francisco, Cal., for amicus curiae.
Assigned by the Chairman of the Judicial Council.
An alternative writ of mandate was issued by this court, directed to respondent court. We have concluded that a peremptory writ should issue forthwith, as prayed.
The petitioner is one of the defendants in an action for wrongful death and personal injuries, pending in the respondent superior court, No. 385947, entitled 'Dianna Lynn Murphy, a minor, James William Murphy, a minor, by and through their Guardian Ad Litem Edward J. Murphy, and Edward J. Murphy, individually, Plaintiffs, vs. Milo Paul Penny, Roberta Hall as Personal Representative for Milo Paul Penny, Does I through XX, Defendants.' The plaintiffs therein are named in this proceeding as real parties in interest.
In the action below, Dianna Lynn Murphy seeks general and special damages for her own personal injuries, all of which are alleged to have resulted from an automobile accident on December 16, 1968. In paragraph III of the second cause of action, Dianna Lynn Murphy seeks special damages in an undetermined amount for medical expenses, including psychiatrists, allegedly made necessary by reason of defendants' negligence.
After the automobile collision giving rise to the action for damages, Dianna Lynn Murphy was referred to Dr. James Bruce Robertson for psychiatric treatment.
On May 20, 1971, the deposition of Dianna Lynn Murphy was taken by the petitioner, in the course of which she stated that prior to the collision she had no problems she needed to talk over with a psychiatrist; that thereafter she felt the need of the care Dr. Robertson was giving her, because she blamed herself for the accident, 'Because I called them. But I don't really think they are dead anyway,' which relates to the death of her mother and her brother in the collision, basis for the wrongful death counts of the action.
After notice, both a subpoena and a subpoena duces tecum were served upon him. The deposition of Dr. James Bruce Robertson was taken on June 4, 1971, in which he testified he was a psychiatrist, that he had seen Dianna Lynn Murphy for 20 to 25 times in his professional capacity for purposes of treatment beginning September 16, [97 Cal.Rptr. 881] 1969, and ending on February 24, 1971. In addition to financial records, he kept 'notes relating to what we talk about during the various hours I see her as well as records of drugs prescribed.' To his knowledge, he was the only psychiatrist who saw her between the dates specified above.
Counsel for Dianna Lynn Murphy then instructed the witness not to answer any question that 'causes you to make references to any knowledge that you have obtained from her in the course of the therapy sessions.' The witness stated, 'I know of nothing outside of my therapeutic relationship.' Such instruction of counsel and refusal thereafter of the witness to answer, and to produce his records, was based upon a claim of patient-psychiatrist privilege, and the doctor's statement that disclosure of the records would be harmful to the patient as a 'betrayal of * * * confidence' which would affect her treatment. Dr. Robertson testified that the need for the therapy had arisen either wholly or partially from the accident, and that further psychotherapy is recommended for her.
He stated an independent psychiatric evaluation by another psychiatrist would be useful to determine the specific effects on Dianna, and more useful than his records. The effect of any disclosure he stated would prevent the continuation of the therapy, might 'conceivably result in even more catastrophic things like suicide attempts, which she has made in the past--one of which she has made in the past. It's conjectural very much though. I don't know.' A similar contention appears to have been made in In re Lifschutz (1970) 2 Cal.3d 415, 422, 85 Cal.Rptr. 829, 467 P.2d 557.
At the outset of the psychotherapist-patient relationship, Dr. Robertson had explained to Dianna Lynn Murphy that a lawsuit for damages based upon mental or emotional difficulties might breach the confidential relationship.
The claim of privilege was persistently made, and the doctor refused to produce the records for examination, though Dr. Robertson was caused to read Evidence Code, article 7, including sections 1010 through 1016. Likewise, he refused to answer any questions pertaining to his care and treatment of Dianna Lynn Murphy or the history she had related to him.
The petitioner thereafter moved for an order to compel Dr. Robertson to answer questions, and an order for production of documents; or in the alternative, for dismissal of plaintiff's count for emotional distress.
The order of the trial court refused such relief, stating: 'The denial of defendants' motion is made in part upon the plaintiff's representation that Dr. Robertson will not be called as a witness on behalf of the plaintiff at the trial. Further, the denial of defendants' motion is without prejudice to a subsequent renewal of the motion if, after an examination of the plaintiff by an independent psychiatrist, defendant can upon good and sufficient evidence show that said independent examination failed to disclose any substantial and relevant information concerning plaintiff's alleged emotional distress.'
It is clear that no testimonial privilege exists under the circumstances. Evidence Code, section 1016, is explicit. 'There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient; * * *'
It is obvious that the issue here is tendered by Dianna Lynn Murphy.
The appointment by the court of a psychotherapist under Evidence Code, section 1017, where privilege likewise is waived, is no alternative to the rights of the defendants under section 1016, where one already has been employed and consulted; nor yet is the employment of another psychiatrist to testify at the trial by the plaintiff any satisfaction of the rights [97 Cal.Rptr. 882] of the defendants to discovery. If revelations to Dr. Robertson were of such nature that their disclosure conceivably would damage the plaintiff, how then would such be any less so when made to a second or third psychiatrist, for trial or otherwise? If the past record was barred to scrutiny, and the patient was impressed that the second examination would be made public, the patient's revelations could be withheld and thus render the subsequent examinations ineffective, pro tanto.
Having discontinued his treatment on February 24, 1971, when Dianna Lynn Murphy came under the care of Dr. Blumenfeld, whom she says she could talk to better, the contention of Dr. Robertson that his disclosures would destroy her confidence in him and his efficacy for her treatment is without force.
It is settled that the waiver of privilege by bringing suit compels disclosure of those matters directly relevant to the nature of the specific emotional or mental condition for which the patient is seeking damages, disclosed in the pleadings, or by her declarations in discovery. (In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557.)
The motion in the court below prayed, in the alternative, that Dianna Lynn Murphy's count for general and special damages be dismissed as they relate to her mental and psychiatric condition. Special damages for psychiatric care could perhaps be so eliminated; but the allegations respecting general damages could not be eliminated because of her traumatic injuries. Under such a general issue, we do not see how it would be feasible to separate shock, pain and suffering and mental distress from the overall physical results, in presentation of the case. (DiMare v. Cresci (1962) 58 Cal.2d 292, 300-301, 23 Cal.Rptr. 772, 373 P.2d 860.)
Assuming that the records of which discovery is sought would disclose medical and psychic factors pre-existing the collision, defendants of course are entitled to show the pre-existing conditions, in assaying the contribution of the collision to plaintiff's present state. In In re Lifschutz, supra, records of treatment ten years before were held liable to disclosure. (Consult also: Bernstein v. Cunningham (1959) 176 Cal.App.2d 283, 287, 1 Cal.Rptr. 234.)
Although as argued by amici curiae, a tortfeasor is not relieved from liability by reason of the fact that the injury consists of aggravation of a pre-existing condition (Perry v. McLaughlin (1931) 212 Cal. 1, 11, 297 P. 554; (Guillory v. Godfrey (1955) 134 Cal.App.2d 628, 632, 286 P.2d 474), yet he is only liable in damages for the detriment his tort has caused, so far as that has evidentiary support. (Harris v. Los Angeles Transit Lines (1952) 111 Cal.App.2d 593, 599, 245 P.2d 35.)
But a plaintiff is not entitled to recover for conditions entirely due to a pre-existing disease. (25 C.J.S. Damages § 20, p. 657.)
Thus, the causes, nature and extent of the pre-existing condition, as well as the present, are facts germane to both liability of a defendant, and the damage for which he may be found responsible, and are pertinent to discovery.
If at trial, in the cross-examination of a psychiatrist particular revelations of a disordered mind are so shocking or bizarre that the possible prejudice they might create is deemed to outweigh their probative value, the trial court may exclude them. (Evid. Code, § 352; In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557.) Evaluation of psychological testimony in any event is for expert opinion and not for a lay jury. But the jury still has the duty to weigh such testimony in the light of the reasons given for it. (Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58, 45 Cal.Rptr. 129, 403 P.2d 385.) Again, such reasons may of necessity include reference to the facts and factors underlying such an opinion, as divulged to the psychiatrist.
[97 Cal.Rptr. 883] Let a peremptory writ of mandate issue, directed to respondent superior court, ordering that the minute order of August 18, 1971, in its case No. 385947, in which Dianna Lynn Murphy, et al., are plaintiffs and Milo Paul Penny, et al., are defendants, be vacated and annulled; and an order be made to compel answers at taking of deposition and compelling production of documents by and from James Bruce Robertson, M.D., at such time as may be reset for resumption of his deposition; and ordering that any orders for settlement conference or setting said cause for trial be vacated, pending his compliance to the full extent provided by law.
Petitioner shall have her costs.
TAYLOR, Acting P. J., and KANE, J., concur.