Opinion
FBTCV176061215S
06-07-2017
Brian Hughes v. Mairead C. Murphy
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendants have moved to compel plaintiff to disclose facts and produce documents relating to his treatment by a psychiatrist prior to the motor vehicle collision that is the subject of this action. Defendants contend that records relating to this treatment " may include treatment for injuries the plaintiff claims to have sustained in the motor vehicle collision . . ." Plaintiff has objected on the ground that confidential communications between a patient and psychiatrist are privileged pursuant to C.G.S. § 52-146c. Defendants assert that plaintiff has waived any patient-psychiatrist privilege by putting his mental health at issue. For the reasons stated below, the motion for order of compliance is denied and the objection thereto is sustained because plaintiff has not waived his privilege under C.G.S. § 52-146c and the court cannot find that the interests of justice require such disclosure.
In his complaint plaintiff alleges that he was a passenger in a vehicle driven by one of the defendants that collided with another vehicle driven by the other defendant. Among the injuries alleged by plaintiff in his complaint are " headaches" and " [p]ain and suffering, both mental and physical . . ." Defendants also point to the report written by a neurologist that plaintiff sustained " loss of consciousness with associated altered mental status and agitation. He had residual symptoms of photosensitivity, headaches, nausea and cognitive fogginess. He also describes general fatigue which lasted four month." There is no indication in the motion papers that plaintiff was being treated by the psychiatrist for injuries sustained in the collision, but rather that he had " mood" issues in the past and was taking medication he would like to " taper off" and " follows" with his psychiatrist. There is no evidence that he had been treated for the same or similar conditions or that the medications prescribed by the psychiatrist treat any of the conditions he complains of in this action.
Section 52-146c generally requires a patient's consent to disclosure of psychological or psychiatric records. There is an exception under C.G.S. § 52-146c(c)(2) " [i]f, in a civil proceeding, a person introduces his psychological condition as an element of his claim . . . and the judge finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between the person and psychologist be protected." See also C.G.S. § 52-146f(5) (consent of patient not required in civil proceedings " in which the patient introduces his mental condition as an element of his claim or defense . . ." and the court finds disclosure " important to the interests of justice . . .").
The burden of proof as to whether the exception under C.G.S. § 52-146c(c)(2) or C.G.S. § 52-146f(5) applies is on the party asserting waiver of the privilege. See Berglass v. Berglass, 71 Conn.App. 771, 786-87, 804 A.2d 889 (2002).
Defendants cite Judge Berger's decision in Kerzner v. United States Fidelity and Guarantee Co., 2002 WL 323537 *1 (Conn.Super. 2002) (Berger, J.) [31 Conn.L.Rptr. 377, ], as a case where the court found a waiver of privilege under C.G.S. § 52-146c(c)(2) because plaintiff had sought damages for " pain and suffering, " later amended to " pain and discomfort, " an alleged inability to engage in life's activities and that he suffered " both headaches and memory loss." If Kerzner was read so broadly that any automobile case alleging " pain and suffering" and inability to engage in life's activities opened the door to discovery of plaintiff's unrelated psychological or psychiatric treatment, there would be little left of the patient-psychologist/psychiatrist privilege in the average collision case.
Courts have adhered to the Supreme Court's admonition that the statutory privileges are of substantial public importance and not to be abrogated lightly, see Falco v. Institute of Living, 254 Conn. 321, 328, 757 A.2d 571 (2000), by concluding that implied waiver does not occur in " garden variety" tort cases where such evidence may be relevant but was not placed in " issue" by the party, but only may be implied in cases in which a party has asserted a claim or defense where the party's psychological condition is an element of the claim or defense. See Safeco Ins. Co. of America v. Vecsey, 259 F.R.D. 23, 29-31 (D.Conn. 2009) (Arterton, J.). An example of a claim that goes beyond a mere " garden variety" mental or emotional distress claim is DeLillo v. Bekric, 2014 WL 278951 *1 (Conn.Super. 2014) (Fischer, J.) , in which Judge Fischer found waiver and noted " the complaint alleges [plaintiff] experienced mental suffering as a result of the collision and, as a component of her claim for mental suffering, she claims to suffer from post-traumatic stress disorder."
" As we have previously observed, [t]he people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records . . . and the principal purpose of that privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor's testimony . . . Accordingly, the exceptions to the general rule of nondisclosure of communications between psychiatrist and patient were drafted narrowly to ensure that the confidentiality of such communications would be protected unless important countervailing considerations required their disclosure." Falco, 254 Conn. at 328 (citations omitted).
Judge Kocay found in Woodsworth v. Viola, 2000 WL 992150 *1 (Conn.Super. 2000) [27 Conn.L.Rptr. 466, ], that an allegation that plaintiff " is unable to work and/or perform her usual activities for a long period of time" did not mean that she made her " psychiatric condition . . . an element of her claim." Other courts have considered the issue of implied waiver of patient-psychologist privilege with varying results. See generally Latour v. Town of Plainfield, 2014 WL 3715023 *2-3 (Conn.Super. 2014) (Boland, J.) [58 Conn.L.Rptr. 383, ] (collection of cases).
In Latour Judge Boland extrapolated the following standard from review of the case law:
On the one hand, it appears clear that incidental, non-dispositive allusions to a possible mental health condition or treatment are an insufficient basis upon which to order a party to disclose his or her privileged records. On the other hand, when the same person's privileged history might have fundamental impact upon his or her claims, or his adversary's defense against those claims, disclosure is justified., 2014 WL 3715023 *4.
In Latour Judge Boland permitted disclosure of prior psychiatric records because he found plaintiff had " opened the door" to discovery concerning his mental condition by alleging he " has endured and will continue to endure emotional pain and suffering" and that he may have " increased future medical problems and exacerbations and the fear of the same.", [WL] *1. Judge Boland commented that the case might revert to a " garden variety" case if plaintiff were to amend his pleadings " to delete the claim for mental or emotional injuries.", [WL] *4.
This case bears some resemblance to Latour in that plaintiff has alleged " [p]ain and suffering, both mental and physical . . ." However, the evidence presented on this motion indicates that allegedly plaintiff suffers from neurological injuries as a result of this accident for which he is being treated by a neurologist, not a psychiatric condition for which he is being treated by a psychiatrist. As such, the allegations appear to be more garden variety pain and suffering allegations that do not waive patient-psychiatrist privilege for his prior psychiatric records and treatment. The Court agrees with the approach of Judge Tanzer in Jacob v. Polvani, CV-02-0280039 S, (Conn.Super. February 25, 2005), summarized in Latour,, 2014 WL 3715023 *3, in which she found allegations that plaintiff claimed to be suffering from an automobile collision " shock and stress to her entire nervous system, and mental anguish along with fear and apprehension of future medical complications" were " too general" to override the privilege.
The allegations of pain and suffering here, interpreted in light of the neurological injuries claimed, are too general to waive the patient-psychiatrist privilege protecting from disclosure plaintiff's prior psychiatric treatment. If plaintiff later opens the door to disclosure of his mental health history by making his mental condition fundamental to his claims, the issue may be revisited. On the present record, the motion for order of compliance is denied.
Plaintiff has only speculated that the prior psychiatric records may be relevant to plaintiff's claims. Relevance, of course, is not the test for waiver of a privilege; it is whether plaintiff has placed his confidential communications " at issue." See e.g., Safeco, 259 F.R.D. at 30, citing Metropolitan Life Ins. Co. v. Aetna Cas. & Surety Co., 249 Conn. 36, 56-57, 730 A.2d 51 (1999).