Annandale at Suwanee, Inc. v. Weatherly, A89A1686

• Decision Date: 12 March 1990
• Docket Number: No. A89A1686,A89A1686
• Citation: 194 Ga.App. 803,392 S.E.2d 27
• Parties: ANNANDALE AT SUWANEE, INC. v. WEATHERLY.
• Court: Georgia Court of Appeals

Page 27

392 S.E.2d 27

194 Ga.App. 803

ANNANDALE AT SUWANEE, INC. v. WEATHERLY.

No. A89A1686.

Court of Appeals of Georgia.

March 12, 1990.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Joseph B. Atkins, Atlanta, for appellant.

Cathey & Strain, Dennis T. Cathey, Cornelia, for appellee.

POPE, Judge.

We granted this interlocutory appeal to consider whether the trial court properly applied the law of privilege relating to certain medical and clinical records in the possession of appellant Annandale at Suwanee, Inc. (Annandale). Appellee Weatherly (hereinafter "plaintiff") sued Annandale on behalf of the estate of Sarah Charles Mitchell who died in a fire on the Annandale campus. Annandale is a boarding institution for mentally handicapped patients. The fire was allegedly set by another boarder, Harold Manown. Manown is an incompetent adult who is deaf and without speech. Plaintiff alleges that Annandale was negligent in supervising Manown and that it knew of Manown's dangerous propensities. Manown is a ward of the State of Maryland, which arranged for his boarding at Annandale. At issue in this appeal are medical and clinical records pertaining to Manown compiled by Maryland and sent to Annandale in connection with Manown's placement in Annandale. Plaintiff filed a request to produce asking for all medical, psychiatric and psychologist reports and any other documents referring to Manown obtained by Annandale from any source. After Annandale objected on the basis of psychiatrist/psychologist-patient privilege, plaintiff sought an order to compel production. The trial court reviewed the records in camera and ordered production of all the records. Held:

The psychiatrist/patient privilege is codified in OCGA § 24-9-21(5): "There are certain admissions and communications excluded on grounds of public policy. Among these are: (5) Communications between psychiatrist and patient." OCGA § 43-39-16 provides that: "The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed."

Although the law provides an absolute privilege against disclosure of communications between a patient and his psychiatrist or psychologist, courts have narrowly interpreted the privilege. "While it is arguable that disclosures made in confidence to mental health professionals other than psychiatrists and psychologists ought to be privileged, the Legislature has not seen to make them so; and the mere fact that a communication is made in confidence is generally considered insufficient to entitle it to a privilege unless the parties bear to each other one of the specific relations recognized as privileged by statute. [Cit.]" Lipsey v. State, 170 Ga.App. 770, 772, 318 S.E.2d 184 (1984). "OCGA § 37-3-166(a)(8) provides that a clinical record of a mental health patient shall be maintained in confidentiality, but that '(t)he record shall be produced in response to a valid subpoena or order of any court of competent jurisdiction, except for matters privileged under the...