County of Alameda v. Superior Court

• Decision Date: 20 August 1987
• Citation: 194 Cal.App.3d 254,239 Cal.Rptr. 400
• Court: California Court of Appeals Court of Appeals
• Parties: The COUNTY OF ALAMEDA, Petitioner, v. SUPERIOR COURT, County of Alameda, Respondent; DARLENE W., etc., Real Parties in Interest. A035526.

Page 400

239 Cal.Rptr. 400

194 Cal.App.3d 254

The COUNTY OF ALAMEDA, Petitioner, v. SUPERIOR COURT, County of Alameda, Respondent DARLENE W., etc., Real Parties in Interest.

A035526.

Court of Appeal, First District, Division 2, California.

Aug. 20, 1987.

Review Denied Nov. 12, 1987.

Stephen G. Blitch, James C. Martin, Mark E. Barmore, Crosby, Heafey, Roach & May, Professional Corp., Oakland, for petitioner

J. Frederick Haley, Matthew D. Haley, Law Offices of J. Frederick Haley, Oakland, for real parties in interest.

SMITH, Associate Justice.

This petition presents the question of whether the identity of a mental patient who allegedly raped another in a county facility is privileged against discovery by the alleged victim in a personal injury action. We hold under the facts of this case that it is not. In doing so, we limit the impact of our holding in Smith v. Superior Court (1981) 118 Cal.App.3d 136, 173 Cal.Rptr. 145.

BACKGROUND

Petitioner, the County of Alameda, defendant in a personal injury action predicated on negligent supervision in its Highland Hospital Emergency Psychiatric Service (hospital), seeks a writ of mandate to restrain the enforcement of respondent court's discovery order requiring disclosure of the name, address and telephone number of a male patient who allegedly raped plaintiff and real party in interest Darlene W., another patient. ¹ Petitioner contends that the information is protected, and thus immune from discovery, under the psychotherapist-patient privilege (Evid.Code, §§ 1010-1027) ² and the privacy provision of our state Constitution (art. I, § 1). ³

The complaint alleges that while Darlene W. was a patient at the hospital, a locked facility providing psychiatric evaluation treatment, she was forced into the men's bathroom and raped by a male fellow patient. One of real parties' interrogatories requested "the name, address, and telephone number of the man found in the bathroom with plaintiff at the time of the incident." Petitioner refused to answer the interrogatory claiming the matter privileged.

Petitioner's opposition stated: "Plaintiff was brought to Highland General Hospital by her mother during the early morning hours of July 7, 1984.... [p] At approximately 4:30 p.m. on July 7, 1984, plaintiff was found by a nurse in the bathroom inside the locked service with a male fellow patient. The plaintiff was fully clothed. At that time, plaintiff denied the male patient did anything to her or with her." Petitioner's opposition included the affidavit of a staff mental health specialist revealing that the man found with Darlene W. was also a patient. ⁴

DISCUSSION

The psychotherapist-patient privilege provides, in parts relevant here, that "the patient, whether or not a party, has a privilege A "confidential communication" for these purposes is defined as "information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship." (§ 1012.)

to refuse to [194 Cal.App.3d 258] disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege; [or] (b) A person who is authorized to claim the privilege by the holder of the privilege; ..." (§ 1014.)

The precise issue in this case is whether the patient's identity (name, address and phone number) is protected under the privilege--in other words, whether it should be treated as a "confidential communication."

We addressed this question, in a different context, in Smith v. Superior Court, supra, 118 Cal.App.3d 136, 173 Cal.Rptr. 145 (Smith ), and petitioner relies on that decision here. Smith was a marital dissolution action in which we held that the names of the husband's psychiatric patients were not discoverable by the wife to ascertain his income. The psychotherapist-patient privilege, we observed, was to be construed in favor of the patient and was based in part on the constitutional right to privacy. (Id., at p. 140, 173 Cal.Rptr. 145, citing In re Lifschutz (1970) 2 Cal.3d 415, 432, 85 Cal.Rptr. 829, 467 P.2d 557.) We relied on settled law that disclosure of the identity of a patient violates even the less stringent, physician-patient privilege "where such disclosure reveals the patient's ailment" (Smith, supra, 118 Cal.App.3d at p. 140, 173 Cal.Rptr. 145) and noted that divulging the fact of psychiatric treatment, while not revealing the particular nature of a patient's ailment, nevertheless impliedly connotes that the patient suffered from some mental or emotional problem (id., at pp. 141-142, 173 Cal.Rptr. 145; see City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 518-519, 168 Cal.Rptr. 49). We therefore concluded that the psychotherapist-patient privilege protected the identity of the husband's patients and noted that the wife had less intrusive means of ascertaining the husband's income. (Smith, supra, 118 Cal.App.3d at pp. 141-142, 173 Cal.Rptr. 145.)

Petitioner asks us to mechanically apply Smith and hold that the identity of the patient in this case, too, is privileged. We decline to do that.

The accepted rule before Smith, commonly invoked in the physician-patient or attorney-client context, was that mere disclosure of the patient's or client's identity was not privileged. Our Supreme Court had said: " 'The whole purpose of the [physician-patient] privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments.' [Citation.] Therefore if the disclosure of the patient's name reveals nothing of any communication concerning the patient's ailments, disclosure of the patient's name does not violate the privilege. [Citation.] If, however, disclosure of the patient's name inevitably in the context of such disclosure reveals the confidential information, namely the ailments, then such disclosure violates the privilege. [Citations.] Conversely if the disclosure reveals the ailments but not the patient's identity, then such disclosure would appear not to violate the privilege." (Rudnick v. Superior Court (1974) 11 Cal.3d 924, 933-934, fn. 13, 114 Cal.Rptr. 603, 523 P.2d 643.) In other words, "[when] disclosure of the fact of [psychotherapist] consultation also of necessity discloses the nature of the condition for which the patient sought treatment, then the fact of disclosure also becomes privileged. [Citation.]" (City of Alhambra v. Superior Court, supra, 110 Cal.App.3d 513, 518, 168 Cal.Rptr. 49.) Also, the statutory definition What motivated our holding in Smith was the practical, policy-based reason that a person might be embarassed by the mere disclosure that he or she had consulted with or been treated by a psychotherapist, even though the specific nature of the "ailment" is not disclosed, and thus might be dissuaded from seeking therapy. The "ailment" prompting the need for therapy might range from minor stress or insomnia to the deepest psychosis, just as the need to see a physician or an attorney could range from innocuous to profoundly embarrassing reasons. Nevertheless, the very notion of psychotherapy carries the stigma of a "mental or emotional problem" and so might in itself be embarassing (Smith, supra, 118 Cal.App.3d 136, 141, 173 Cal.Rptr. 145; City of Alhambra v. Superior Court, supra, 110 Cal.App.3d 513, 519, 168 Cal.Rptr. 49) regardless of the underlying "ailment." It may be that, with growing understanding and acceptance of psychotherapy by the public in general, the mere fact of having sought or received psychotherapy will someday lose all negative connotations. That day has not yet arrived.

of "confidential communication"--essentially the same for the psychotherapist-patient (§ 1012), physician-patient (§ 992) and attorney-client (§ 952) privileges--does not by its express language include the identity of every client or patient.

Despite the negative connotation of a "mental or emotional problem," however, we bear in mind that the connotation is a vague one and that the cost of privilege can be dear. In this case, as respondent court noted: "[Darlene W.] is a mentally ill person who may well have difficulty presenting her case without corroboration, particularly in light of defendant's claims as to her statements at the time of the incident. The alleged rapist is the only other witness. His testimony may be vital both on the issue as to whether a rape occurred at all, and as to the quality of supervision in the psychiatric ward." As a practical matter, Darlene W. will be deprived of her day in court if the man's identity is not disclosed. She does not ask for the type of communications that would reveal the man's particular problems or treatment--only his identity and the chance to prove her case from whatever nonprivileged sources she might uncover from that bare-bones beginning.

Our Supreme Court has acknowledged " 'the growing importance of the psychiatric profession in our modern, ultracomplex society.' Thus for reasons of policy the psychotherapist-patient privilege has been broadly construed in favor of the patient. [Citations.] Confidential communications between psychotherapist and patient are protected in order to encourage those who may pose a threat to themselves or to others, because of some mental or emotional disturbance, to seek professional assistance. [Citation.]" (People v. Stritzinger (1983) 34 Cal.3d 505, 511, 194 Cal.Rptr. 431, 668...