Desclos v. Southern New Hampshire Medical Center
| Decision Date | 09 June 2006 |
| Docket Number | No. 2005-596.,2005-596. |
| Parties | Linda DESCLOS v. SOUTHERN NEW HAMPSHIRE MEDICAL CENTER and another. |
| Court | New Hampshire Supreme Court |
Nixon, Raiche, Manning, Vogelman & Leach, P.A., of Manchester (Kevin M. Leach on the brief and orally), for the plaintiff.
Sulloway & Hollis, P.L.L.C., of Concord (Michael P. Lehman and Margaret H. Nelson on the brief, and Mr. Lehman orally), for the defendants.
Burns, Bryant, Cox, Rockefeller & Durkin, P.A., of Dover, by brief, for the New Hampshire Trial Lawyers Association, as amicus curiae.
The plaintiff, Linda Desclos, brings this interlocutory appeal from a Superior Court (Groff, J.) order granting the defendants, Southern New Hampshire Medical Center, James F. Carroll, M.D., and Nurse Jane Doe, access to her psychiatric and psychological records. We vacate and remand.
The record reveals the following facts. Desclos brought a suit for medical negligence, alleging that, on August 18, 2003, she sought treatment from the defendants who failed to recognize her symptoms of spinal cord injury. As a result, the suit alleged, Desclos suffered irreversible quadriplegia. She claimed damages including pain and suffering, loss of earning capacity, and loss of enjoyment of life.
The defendants sought all of Desclos' psychiatric and psychological records created before August 18, 2003. Their motion stated that, although Desclos had released her psychological records created after the injury, the records of her psychiatric history prior to the injury would be relevant to her damage and liability claims.
The trial court ruled: "The plaintiff's psychiatric and psychological records are clearly relevant to the issue of damages in regard to pain and suffering and loss of enjoyment of life, and are reasonably calculated to lead to the discovery of admissible evidence." In denying Desclos' motion to reconsider, the trial court further ruled that "by the nature of the plaintiff's claim [for loss of enjoyment of life and pain and suffering,] she has waived the psychotherapist-patient privilege."
On appeal, Desclos argues that the trial court's order violates the psychotherapist-patient privilege, and that she did not waive the privilege simply by claiming generic damages that are likely to arise from the injuries caused by the medical negligence alleged. She notes that she neither brought a claim for intentional or negligent infliction of emotional distress, nor claimed separate emotional distress damages, specifically to avoid waiving her privilege.
The defendants argue that the trial court properly balanced Desclos' privacy rights in her mental health records against the defendants' need to obtain evidence relevant to their defense. Discovery of Desclos' mental health records created prior to her injury is necessary, the defendants argue, for them to respond to the damage claims of pain and suffering, loss of earning capacity, and loss of enjoyment of life. They also argue that they need the records to challenge Desclos' reliability in reporting symptoms.
We review a trial court's decisions on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard. In re Juvenile 2002-209, 149 N.H. 559, 561, 825 A.2d 476 (2003). We will not disturb the trial court's order absent an unsustainable exercise of discretion. Petition of Haines, 148 N.H. 380, 381, 808 A.2d 72 (2002). To meet this standard, Desclos must demonstrate that the trial court's rulings were clearly untenable or unreasonable to the prejudice of her case. In re Juvenile 2002-209, 149 N.H. at 561, 825 A.2d 476.
At issue in this case is the psychotherapist-patient privilege. Evidentiary privileges are exceptions to the general duty to give all testimony that one is capable of giving. Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996); 1 J. Strong et al., McCormick on Evidence § 72, at 298-99 (5th ed.1999). Such exceptions are justified by a public good that transcends the general principle of using all rational means for ascertaining truth. Jaffee, 518 U.S. at 9, 116 S.Ct. 1923. Evidentiary privileges promote sufficiently important interests to justify the sacrifice of some available probative evidence. Id. at 9-10 116 S.Ct. 1923; Strong, supra § 72. New Hampshire has codified the psychotherapist-patient privilege in RSA 330-A:32 (2004), which states, in pertinent part:
The confidential relations and communications between [a licensed mental health practitioner] and such licensee's client are placed on 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 communications to be disclosed, unless such disclosure is required by a court order.
See also N.H. R. Ev. 503(b). We recently emphasized the importance of the psychotherapist-patient privilege:
By fostering productive relationships between therapists and their clients, the therapist-client privilege advances the public good accomplished when individuals are able to seek effective mental health counseling and treatment. . . . The mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. It is difficult if not impossible for a psychotherapist to function without being able to assure patients of confidentiality and, indeed, privileged communication.
In the Matter of Berg & Berg, 152 N.H. 658, 665, 886 A.2d 980 (2005) (quotations and citations omitted). Neither party disputes that the records sought by the defendants in the instant case are privileged communications pursuant to RSA 330-A:32 and New Hampshire Rule of Evidence 503(b).
Despite the privileged nature of the communications at issue, the trial court applied the "relevance" standard to determine whether to compel production of the records for pretrial discovery. The trial court stated that Desclos' psychiatric and psychological records were "clearly relevant to the issue of damages in regard to pain and suffering and loss of enjoyment of life," and were "reasonably calculated to lead to the discovery of admissible evidence." Superior Court Rule 35(b)(1) sets forth the standard that the trial court used, but the rule specifically exempts privileged material from that standard, stating:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Super. Ct. R. 35(b)(1) (emphasis added). Accordingly, the trial court applied an incorrect standard for discovery of privileged material. Relevance alone is not the standard for determining whether or not privileged materials should be disclosed. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir.1994); Alcon v. Spicer, 113 P.3d 735, 741 (Colo. 2005); Gould, Larson, Bennet, Wells & McDonnell, P.C. v. Panico, 273 Conn. 315, 869 A.2d 653, 659-660 (2005); R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex.1994).
Generally, there are two means by which disclosure of privileged information may occur: (1) the court finds a waiver of the privilege, Petition of Dean, 142 N.H. 889, 890, 711 A.2d 257 (1998); or (2) the court orders a piercing of the privilege, State v. Elwell, 132 N.H. 599, 605, 567 A.2d 1002 (1989). We address each method in turn.
The defendants argue that Desclos impliedly waived her psychotherapist-patient privilege by claiming damages for loss of enjoyment of life, loss of earning capacity, and pain and suffering. Courts in other jurisdictions have held that a plaintiff impliedly waives the psychotherapist-patient privilege by putting his or her emotional or mental condition "at issue," e.g., Jackson v. Chubb Corp., 193 F.R.D. 216, 225 (D.N.J.2000); State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. 2006) (en banc), or by "injecting his or her mental condition into the case," e.g., Hoffman v. Brookfield Republic, Inc., 87 P.3d 858, 863 (Colo.2004). Though we have never explicitly held that a plaintiff may impliedly waive the psychotherapist-patient privilege, we have stated that a plaintiff may impliedly waive the attorney-client privilege by putting the privileged communications "at issue." Dean, 142 N.H. at 890, 711 A.2d 257. We have additionally qualified waiver of the attorney-client privilege by "limit[ing] the extent of an atissue waiver of the attorney-client privilege to circumstances in which the privilege-holder injects the privileged material itself into the case." Id. When a party asserting the attorney-client privilege injects privileged material into the case "such that the information is actually required for resolution of the issue, the privilege-holder must either waive the attorney-client privilege as to that information or be prevented from using the privileged information to establish the elements of the case." Aranson v. Schroeder, 140 N.H. 359, 370, 671 A.2d 1023 (1995) (). Since our law places the psychotherapist-patient privilege on the same basis as the attorney-client privilege, RSA 330-A:32; N.H. R. Ev. 503(b), we conclude that a party waives the psychotherapist-patient privilege by putting the confidential communications at issue by injecting the privileged material into the case. If the privilege-holder has injected the privileged material into the case such that the information is actually required for resolution of the issue, then the privilege-holder must either waive the privilege as to that information or be prevented from using the privileged information to establish the elements of the case.
We must now determine whether the...
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Zibolis-Sekella v. Ruehrwein, Civil No. 12-cv-228-JD
..."injects his privileged communications into the case such that it was required for resolution of the . . . claim." Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 613 (2006). Alternatively, a party seeking privileged information may overcome the privilege by showing that the information sought ......