Cooksey v. Landry

• Decision Date: 30 June 2014
• Docket Number: No. S14A0926.,S14A0926.
• Citation: 761 S.E.2d 61,295 Ga. 430
• Parties: COOKSEY v. LANDRY, et al.
• Court: Georgia Supreme Court

295 Ga. 430

761 S.E.2d 61

COOKSEY

v.LANDRY, et al.

No. S14A0926.

Supreme Court of Georgia.

June 30, 2014.

Randolph Page Powell Jr., Huff, Powell & Bailey, LLC, Atlanta, for appellant.

Philip C. Henry, Wendy Goodwin Huray, Henry Spiegel Milling, LLP, Atlanta, for appellee.

THOMPSON, Chief Justice.

Before he committed suicide in September 2012, twenty-two-year old Christopher Landry for several years had been under the care of appellant Crit Cooksey, a psychiatrist. In August 2012, Dr. Cooksey prescribed both Seroquel and Cymbalta for Christopher, two drugs that contain a “black box warning” from the Food and Drug Administration which warns of an increased risk of suicidal thinking and behavior in young adults and recommends that medical professionals prescribing the drugs monitor patients for worsening or emergent suicidal thoughts and behavior. Following Christopher's death, his parents, appellees Lisa and Michael Landry,¹ began investigating a potential medical malpractice, wrongful death, and survival action against Dr. Cooksey and made multiple requests for copies of Christopher's psychiatric records. Dr. Cooksey on each occasion refused to produce the records, claiming they are protected from disclosure by Georgia's psychiatrist-patient privilege. See OCGA § 24–5–501(a).²

Appellees filed a complaint seeking a permanent injunction directing Dr. Cooksey to turn over all of Christopher's psychiatric records. Appellees argued that without the records they would be unable to investigate whether a cause of action exists against Dr. Cooksey, and they would be unable to gain relevant and necessary information upon which to base the expert affidavit required to initiate a medical malpractice claim. See OCGA § 9–11–9.1. The trial court, without reviewing Dr. Cooksey's files, concluded that equity supported appellees' position and issued an injunction directing Dr. Cooksey to produce to appellees “all records pertaining to the medical treatment and history of Christopher Michael Landry.” ³ Dr. Cooksey appealed from the trial court's order and filed a motion for an emergency stay which this Court granted. Having reviewed the record and applicable law, we conclude that the trial court erred to the extent it exercised its equitable powers to order the production of information protected from disclosure by Georgia law. Accordingly, we affirm the order of the trial court in part and reverse and remand to the trial court in part for further action consistent with this opinion.

1. The issue to be decided by the trial court in this appeal was a legal one, whether the psychiatric records sought by appellees constitute privileged matters protected from disclosure under Georgia law. Accordingly, we review the trial court's legal determinations de novo. Hankla v. Postell, 293 Ga. 692, 693, 749 S.E.2d 726 (2013) (using de novo standard of review where issue to be decided was purely legal).

2. Appellees filed their complaint seeking the trial court's assistance, through the exercise of its equity jurisdiction, in obtaining a copy of Christopher's psychiatric records. Conceding that there exists no statutory authority requiring Dr. Cooksey to produce the records, they argued that they have a right to bring a civil claim against Dr. Cooksey, see OCGA § 51–1–27 and OCGA § 51–4–4, that the psychiatrist-patient privilege found in OCGA § 24–5–501(a) impedes their right by protecting psychiatric-patient communications from disclosure, and therefore, the legal processes available to them provide an inadequate remedy. In support of their argument, they correctly cite both statutes and case law recognizing the authority bestowed upon our superior courts to assist through equity “every person who is remediless elsewhere ... to enforce any right recognized by the law.” OCGA § 23–1–3; OCGA § 23–4–20; Brown v. Liberty Oil & Refining Corp., 261 Ga. 214(2), 403 S.E.2d 806 (1991). The trial court, without reviewing Dr. Cooksey's files and without making any distinction between privileged and non-privileged information, in turn directed that the entirety of Christopher's psychiatric records be provided to appellees based on its conclusion that equity required their production. To hold otherwise, the trial court concluded, “would effectively tie [appellees'] hands behind their back [s] in pursuing their investigation.”

While we agree with appellees that a civil action arising out of Christopher's suicide may be authorized under Georgia law and agree with the trial court that application of the protections afforded psychiatrist-patient communications by OCGA § 24–5–501(a) may pose a hardship to appellees in the investigation of potential claims against Dr. Cooksey, neither of these factors authorized the trial court to require the production of privileged communications contrary to OCGA § 24–5–501(a). The first maxim of equity is that equity follows the law. Equity cannot, therefore, “override the positive enactments of the statutes.” Lewis v. Bd. of Ed. of Lowndes County, 183 Ga. 687, 690, 189 S.E. 233 (1936). “ ‘Where rights are defined and established by existing legal principles, they may not be changed or unsettled in equity.’ 27A AmJur2d 595, Equity, § 109 (1996). Although equity does seek to do complete justice, OCGA § 23–1–7, it must do so within the parameters of the law.” Dolinger v. Driver, 269 Ga. 141(4), 498 S.E.2d 252 (1998) (equity could not be used to force school officials to allow students to participate in graduation ceremony when they had no legal right to do so); Hopkins v. Virginia Highland Assoc., 247 Ga.App. 243, 249, 541 S.E.2d 386 (2000) (equity could not be used to grant easement in sewer line where established law provided that property is not burdened with easement when subsequent bona fide purchaser takes without notice of the easement).

As a matter of public policy, Georgia law “has long provided for the confidentiality of communications between a [psychiatrist] and patient.” Kennestone Hosp., Inc. v. Hopson, 273 Ga. 145, 148, 538 S.E.2d 742 (2000). The primary purpose of the privilege “is to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient's emotional or mental disorders.” State v. Herendeen, 279 Ga. 323, 325–326, 613 S.E.2d 647 (2005). Communications between certain mental health providers, including communications between psychiatrists and patients, are, therefore, protected from disclosure.⁴OCGA § 24–5–501(a); Herendeen, supra, 279 Ga. at 327, 613 S.E.2d 647. The psychiatrist-patient privilege remains inviolate even though the patient's care and treatment or the nature or extent of the patient's injuries are put in issue in a civil proceeding. See OCGA § 24–12–1(a) and former OCGA § 24–9–40. The strength of the psychiatrist-patient privilege is further evident in that the privilege is held only by the patient and waiver of the privilege must be expressly made by the patient, or, in the absence of an express waiver by the patient, “one seeking the disclosure of privileged mental-health records must establish a waiver by the patient's ‘decisive unequivocal conduct reasonably inferring the intent to waive [.]’ ” ⁵Herendeen, 279 Ga. at 327, 613 S.E.2d 647.

Moreover, and of primary importance in this case, is the fact that unlike other recognized privileges, the psychiatrist-patient privilege survives the death of the patient.⁶ See Sims v. State, 251 Ga. 877, 881, 311 S.E.2d 161 (1984); Boggess v. Aetna Life Insurance Co., 128 Ga.App. 190, 192, 196 S.E.2d 172 (1973) (discussing attorney-client privilege). Consistent with the protections afforded psychiatrist-patient communications even after a patient's death, our legislature has determined that a deceased patient's representative cannot waive the psychiatrist-patient privilege. See OCGA § 31–33–4 (providing that statutes authorizing the release of health records to a deceased patient's representative “shall not apply to psychiatric, psychological, or other mental health records of a patient”); OCGA § 37–3–166(a)(8.1) (authorizing mental health facilities to release a deceased patient's mental health records “to the legal representative of [the] deceased patient's estate, except for matters privileged under the laws of this state.”).

The dissent, recognizing that there is no Georgia law authorizing the waiver of the psychiatrist-patient privilege by a deceased patient's representative, urges this Court to nevertheless create such a right as “a matter of public policy.” Yet, it offers no authority for this Court's adoption, as “a matter of public policy,” of a ruling directly contrary to statutory laws enacted by our legislature based on “grounds of public policy.” ⁷ See OCGA § 24–5–501(a)(5) (stating that protected psychiatrist-patient communications are excluded from evidence on “grounds of public policy”). The dissent's interpretation of the clear language of OCGA § 31–33–4 exempting psychiatric records from its disclosure provisions to mean that “the estate representative may [ ] waive the [psychiatrist-patient] privilege on behalf of the deceased patient” comports with neither logic nor rules of statutory construction.

Because under Georgia law confidential communications between a psychiatrist and patient may not be disclosed absent waiver by the patient and a trial court may not utilize its equitable powers to afford relief contrary to the law, we conclude the trial court erred to the extent its order granting injunctive relief requires the disclosure of privileged information. Appellees cite Brown v. Liberty Oil & Refinery Corp., supra, 261 Ga. 214, 403 S.E.2d 806, as authority for the trial court's use of its equitable powers in this case. Brown, however, is distinguishable. The plaintiffs in Brown were minor children seeking to maintain a wrongful death action arising out of their mother's death. The children's father, who was by s...