Arena v. Saphier

• Decision Date: 01 May 1985
• Citation: 492 A.2d 1020,201 N.J.Super. 79
• Parties: Joanne B. ARENA and Alfred E. Arena, Plaintiffs-Respondents, v. Henry I. SAPHIER, M.D., and Women's Medical Services, Defendants-Appellants, and Joseph Riggs, M.D., and Joseph A. Riggs, M.D., P.A., a Professional Corporation of the State of New Jersey, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 79

201 N.J.Super. 79

492 A.2d 1020

Joanne B. ARENA and Alfred E. Arena, Plaintiffs-Respondents, v. Henry I. SAPHIER, M.D., and Women's Medical Services,

Defendants-Appellants,

and

Joseph Riggs, M.D., and Joseph A. Riggs, M.D., P.A., a

Professional Corporation of the State of New

Jersey, Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued April 2, 1985.

Decided May 1, 1985.

Richard E. Brennan, Morristown, for defendant-appellant Saphier (Shanley & Fisher, Morristown, attorneys; Lisbeth A. Warren, Morristown, on the brief).

William C. Cagney, Hackensack, for defendant-appellant Riggs (Markey, Dailey & Cagney, Hackensack, attorneys; William C. Cagney, Hackensack, on the brief).

Jo Ann Burk, Newark, for plaintiffs-respondents (Stryker, Tams & Dill, Newark, attorneys; Jo Ann Burk, Newark, on the brief).

Before Judges MICHELS, PETRELLA and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

We granted defendants' motion for leave to appeal from an interlocutory order of the Superior Court, Law Division to consider novel questions pertaining to the scope of the psychologist-patient privilege within the context of the pretrial discovery process. This is a medical malpractice action in which it is alleged that defendants failed to properly diagnose and treat plaintiff's ectopic pregnancies resulting in the loss of her fallopian tubes and consequent inability to conceive. Among other things, plaintiff seeks damages for the emotional distress and acute depression allegedly caused by defendants' negligent conduct. At issue is whether the consultation notes of plaintiff's psychologist who treated her for a lengthy period of time both before and after her ectopic pregnancies are protected from pretrial disclosure by the provisions of N.J.S.A. 45:14B-28. The trial judge entered an order precluding discovery of these materials. We disagree and reverse.

We hold that a psychologist may be compelled to reveal relevant confidences of treatment when the patient tenders her mental or emotional condition in issue during the course of litigation. Under such circumstances, the patient's communications to her psychotherapist should not be enshrouded in the veil of absolute privilege. Rather, important public policy considerations favoring liberal pretrial discovery compel disclosure of all relevant information. Nevertheless, we are not insensitive to the countervailing necessity of protecting the patient from needless humiliation, harassment and exposure. In our view, these antithetical interests can best be accommodated by the trial court's thorough in camera inspection of the consultation notes to determine their relevance.

The facts need not be recounted at length. Plaintiff and her husband instituted separate actions against her two treating physicians and their respective professional corporations. The complaints were subsequently consolidated. The record reflects that plaintiff was under the care of Dr. Saphier, an obstetrician and gynecologist, in the summer and autumn of 1980. According to plaintiff's complaint, Dr. Saphier initially failed to timely diagnose a left fallopian tube ectopic pregnancy. As a result, she was hospitalized and a salpingectomy was performed resulting in the loss of plaintiff's left fallopian tube. ¹ Plaintiff further claims that later in the same year Dr. Saphier failed to diagnose a right fallopian tube ectopic pregnancy. Concerned with what she perceived to be Dr. Saphier's negligence, plaintiff sought consultation with Dr. Riggs, a gynecologist. According to her complaint, Dr. Riggs did not immediately recognize her condition. It is claimed that his failure to promptly diagnose her ectopic pregnancy coupled with Dr. Saphier's initial negligence resulted in the removal of plaintiff's right fallopian tube and ovary.

In both complaints, plaintiff seeks damages for pain and suffering, medical expenses, loss of earnings and permanent injury by virtue of the loss of her capacity to conceive. In addition, plaintiff's husband seeks damages for loss of services and consortium. He further contends that his rights were permanently impaired because of his wife's present infertility. Both plaintiff and her husband candidly acknowledge that her present psychological condition is directly in issue by virtue of their allegations of mental anguish and depression caused by defendants' negligence. In his depositions, plaintiff's husband testified that his wife suffers from acute depression and is a "different person" since the operations. In a similar vein, plaintiff related that she is frequently depressed and harbors deep anxiety pertaining to her future. These allegations were substantially corroborated in a report prepared by plaintiff's expert witness, a psychiatrist.

The present appeal concerns defendants' attempt to obtain certain consultation notes of plaintiff's treating licensed psychologist Irene Rapaport. It is undisputed that plaintiff consulted with Ms. Rapaport between 1974 and 1980. It would appear that psychotherapy treatment was relatively intense during this period of time, plaintiff visiting the psychologist's office on a weekly basis. Unfortunately, the sparse record is largely uninformative with respect to the reasons for such treatment. Apparently, plaintiff was having marital problems with her first husband at the time. In any event, plaintiff re-instituted consultations with Ms. Rapaport on January 9, 1981. According to plaintiff, she is currently under treatment for her depressive reaction resulting from her inability to conceive. We note that plaintiff has expressed her intention to have Ms. Rapaport appear as a witness and testify on her behalf. Although plaintiff characterizes Ms. Rapaport as a "fact witness," it is abundantly clear that she will testify with respect to her patient's depressive reaction following the removal of the latter's fallopian tubes.

Subsequent to plaintiff's deposition, counsel for defendant Saphier requested authorization for the release of Ms. Rapaport's records. An authorization was executed by plaintiff and ultimately forwarded to the psychologist. Ms. Rapaport responded with an edited summary of two office visits. The first memorialized a telephone conversation between the psychologist and Dr. Saphier in which the latter allegedly stated that there was no possibility of an ectopic pregnancy. The excerpt from the second visit stated in conclusory terms that plaintiff continued to suffer from depression caused by her inability to conceive. The document reflects that other materials were deleted because of their alleged lack of pertinence.

Following receipt of these consultation notes, defendant's attorney demanded copies of all records in accordance with the terms of the authorization. In response, plaintiff's counsel adopted the position that all consultation notes pertaining to treatments prior to August 1980 were irrelevant and, hence, not discoverable. Thereafter, Ms. Rapaport's records were subpoenaed. Pursuant to the agreement of counsel, the return date of the subpoena was adjourned to permit plaintiff to apply for a protective order precluding the discovery of privileged material pursuant to R. 4:10-2(a) and R. 4:10-3.

The trial judge subsequently rendered an oral opinion in which he held that the psychologist-patient privilege had been waived because plaintiff's mental and emotional condition constituted a material element of her claim for damages. The court further concluded that prior instances of treatment were relevant with respect to the questions of cause and aggravation of plaintiff's condition. The trial judge thus directed that Ms. Rapaport's office logs and records pertaining to plaintiff's treatment prior to 1980 be disclosed. However, the court issued a protective order precluding discovery of consultation notes and letters plaintiff had written to Ms. Rapaport during the course of her treatment. Although the order was not specific with respect to dates, we construe it as protecting only those records bearing upon plaintiff's treatment between 1974 and 1980. We note in that regard that plaintiff voluntarily supplied all records with respect to subsequent treatment. The order is also somewhat ambiguous with regard to whether deposition testimony may be elicited pertaining to plaintiff's confidential communications to her psychologist during the earlier period of time. In that regard, the order provides that Ms. Rapaport's "conclusions as to diagnosis, causation, prognosis, aggravation, and nature of treatment" may be the subject of inquiry. However, the order further reads that "such information is not discoverable through consultation notes" of treatment sessions.

Initially, we reject defendants' argument that the confidential communications between plaintiff and her psychologist were not privileged. In support of that contention, defendants cite N.J.S.A. 2A:84A-22.4. That statute provides in pertinent part that "[t]here is no privilege under this act in an action in which the condition of the patient is an element or factor of the claim...." The principal thrust of defendants' argument is that the statutory psychologist privilege is subject to the provisions of N.J.S.A. 2A:84A-22.4, which mandate full pretrial disclosure when the patient's mental or emotional condition is placed in issue. Defendants contend that there is no privilege under such circumstances and, therefore, questions pertaining to waiver are essentially irrelevant.

We disagree. In our view, N.J.S.A. 2A:84A-22.4 is not controlling. Rather, that statute was enacted in 1968 as part of the legislative scheme establishing the physician-patient privilege. The legislative history pertaining to N.J.S.A. 2A:84A-22.4 was described in Lazorick v. Brown, 195 N.J.Super. 444, 451-452, 480 A.2d 223 (App.Div.1984) and need not be summarized here. Suffice it to say, the statute was designed to continue the policy...