Caesar v. Mountanos

• Citation: 542 F.2d 1064
• Decision Date: 13 September 1976
• Docket Number: No. 74-2271,74-2271
• Parties: George R. CAESAR, M.D., Petitioner-Appellant, v. Louis P. MOUNTANOS, as Sheriff of the County of Marin, State of California, et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1064

542 F.2d 1064

George R. CAESAR, M.D., Petitioner-Appellant, v. Louis P. MOUNTANOS, as Sheriff of the County of Marin, State of California, et al., Respondents-Appellees.

No. 74-2271.

United States Court of Appeals Ninth Circuit.

Sept. 13, 1976.

Kurt W. Melchior (argued), of Severson, Werson, Berke, & Melchior, San Francisco, Cal., for petitioner-appellant.

James D. Hammond (argued), of Bacon, Stone, O'Brien, & Hammond, San Francisco, Cal., for respondents-appellees.

Before KOELSCH and HUFSTEDLER, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Petitioner, Dr. George R. Caesar, a licensed psychiatrist practicing in California, has appealed from an order denying his petition for writ of habeas corpus seeking to set aside a contempt adjudication and sentence in the California Superior Court, Marin County. ¹ He was adjudged in contempt for refusing to obey an order directing him to answer questions relating to communications with a former patient, based on "patient-litigant exception" to the psychotherapist-patient privilege, contained in California Evidence Code § 1016. ² Petitioner contends that § 1016 violates "rights of privacy, due process and equal protection which exist under the Constitution of the United States". ³ In a detailed and well reasoned opinion the Supreme Court of California rejected this contention in In Re Lifschutz, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1 (1970), and upheld the validity of § 1016. We agree with the conclusions of the court in In Re Lifschutz and affirm the order of the district court.

Background

In December 1969, Joan Seebach was referred to Dr. Caesar for psychiatric examination and treatment following an automobile accident on December 4, 1969. Dr. Caesar saw her approximately 20 times for psychotherapy. Miss Seebach had been in another automobile accident on August 30, 1968. She filed separate actions to recover damages for both accidents in July and August, 1970. In her complaints Miss Seebach alleged that the accidents caused her personal injury and pain and suffering not limited to her physical ailments. She alleged further that she had incurred medical expenses and loss of income in amounts not fully ascertainable at that time. In a deposition in one of the cases, taken on June 15, 1971, Miss Seebach and her counsel indicated that "some of the care and treatment" given by Dr. Caesar "may be involved in this lawsuit". ⁴ Another psychiatrist in a deposition testified that Miss Seebach's attending physicians had recommended referral to Dr. Caesar because they felt there was "an emotional overlay" to her problems and that she was "magnifying her distress". ⁵

The two actions were consolidated for trial, and Dr. Caesar's deposition was taken on April 5, 1972. He testified that he had given his notes on Miss Seebach to her counsel. He refused to answer any questions regarding his treatment of Miss Seebach, stating that in his judgment "answering further questions and revealing her confidences could be harmful to her psychologically, and detrimental to her future well-being". Caesar indicated that he had not received "valid consent" from Miss Seebach which would permit him to testify. Counsel for Miss Seebach then told Caesar that she was no longer his patient and that although there had been some prior confusion about Miss Seebach's consent, she had authorized counsel to stipulate that consent for Caesar to testify had been given. Caesar refused to accept this consent and stated further that even if written consent were given he would still refuse to testify. Subsequently, Miss Seebach filed a notice revoking her waiver of the psychotherapist-patient privilege.

Following a hearing an order was entered in the Marin County Superior Court on October 18, 1972 requiring Dr. Caesar to give his deposition. The court held that under § 1016, as construed in In Re Lifschutz, Miss Seebach had waived the psychotherapist-patient privilege when she placed her "mental or emotional condition" in issue by "claiming damages for mental and emotional distress". At a second deposition on November 27, 1972 Dr. Caesar acknowledged that he had treated Miss Seebach for injuries she had sustained in the accidents and that he had diagnosed her condition as depressed. He refused, however, to answer eleven questions concerning the relationship of her emotional condition to the accidents. The contempt order followed on December 12, 1972. ⁶ After petitioner had exhausted his state court remedies, he sought relief in federal court. In denying his petition, the district court held that § 1016 was not unconstitutional, did not invade any rights of privacy of petitioner or his patient, and that the contentions of petitioner should be addressed to the State Legislature rather than the courts.

Contentions on Appeal

Under California Evidence Code § 1014 a psychotherapeutic patient has the privilege to refuse to disclose and to prevent others from disclosing confidential communications between the patient and doctor. § 1015 allows the psychotherapist to claim the privilege of his patient when information about a confidential communication is sought. However, as noted supra, § 1016 provides, "There is no privilege under this article as to communications relevant to an issue concerning the mental or emotional condition of the patient if such an issue has been tendered by: (a) The patient . . ."

In attacking the validity of § 1016, petitioner contends that (1) there is an absolute constitutional protection for communications between patients and their psychotherapists of the type sought from Dr. Caesar, based on the right of privacy; (2) § 1016 violates the Equal Protection Clause of the Fourteenth Amendment in that (a) psychotherapeutic patients are deprived of rights afforded other litigants, and (b) § 1016 "discriminates unreasonably between those who seek out psychotherapists and those who seek out clergymen for the relief of emotional distress"; and (3) § 1016 is unjustified by any compelling state interest and is not narrowly drawn to express only the legitimate state interest at stake. Virtually all of these issues were considered in Lifschutz. It is contended, however, that the California court reached the wrong result in Lifschutz and that its decision "cannot withstand more current constitutional scrutiny", particularly in the light of the broader reach of doctor-patient privacy recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

The Lifschutz Decision

Lifschutz, a psychiatrist, was placed in custody for refusing to obey a discovery order issued by a trial judge pursuant to California Evidence Code § 1016. In Lifschutz, as here, the patient had tendered his mental and emotional condition in issue in a lawsuit, thus activating a waiver of the psychotherapist-patient privilege under the statute. The California Supreme Court denied Lifschutz's petition for habeas corpus, holding that the federal constitution did not establish an absolute privilege for psychotherapeutic communications. The court construed § 1016 to require disclosure only of information directly pertinent to issues raised by the patient in a lawsuit and held that in applying the section, the psychotherapeutic privilege should be liberally construed in favor of the patient. When so limited, the court found that the statute did not constitute an impermissible invasion into the sphere of privacy encompassing the doctor-patient relationship in light of the various interests which must be balanced. ⁷

Absolute Privilege

Petitioner relies, as did Dr. Lifschutz, on the fundamental right of privacy encompassing the doctor-patient relationship. This right of privacy, the psychotherapists contend, must be construed to provide an absolute privilege for psychotherapeutic communications because of the nature of the relationship, depending, as it does, on the patient's complete confidence in the psychotherapist. ⁸ The Lifschutz court found this argument to raise serious and meritorious issues. The court held, however, that Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the leading decision on doctor-patient rights at the time Lifschutz was decided, did not prohibit all state interference in the doctor-patient relationship but instead left room for some state regulation. The Lifschutz court recognized, as we do, that psychotherapy is perhaps more dependent on absolute confidentiality than other medical disciplines. In interpreting § 1016 the court was "mindful of the justifiable expectation of confidentiality that most individuals seeking psychotherapeutic treatment harbor" 85 Cal.Rptr. at 839, 467 P.2d at 567. The court noted, however, that psychotherapy had not been destroyed but rather had flourished in the face of § 1016 and similar statutes which establish less than absolute psychotherapist-patient privilege. The court concluded that the constitution does not provide psychotherapists with an absolute right of privacy but permits limited intrusion into the psychotherapist-patient privilege when properly justified.

Petitioner contends that because the court in Lifschutz did not have the benefit of the more recent analysis of the doctor-patient relationship in Roe v. Wade, supra, and Doe v. Bolton, supra, the Lifschutz opinion is subject to re-examination and correction. ⁹ We disagree. Both the Roe and Doe decisions spoke of and relied upon a conditional right of privacy in the doctor-patient relationship. As the Court in Roe, 410 U.S. at 153-54, 93 S.Ct. at 727, noted after reviewing a long line of privacy cases, "The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate." Roe held that interference with the doctor-patient relationship could be justified upon the showing of a ...