Ex parte United Service Stations, Inc.

CourtSupreme Court of Alabama
Writing for the CourtHORNSBY; HOUSTON; HOUSTON
Citation628 So.2d 501
Decision Date24 September 1993
PartiesEx parte UNITED SERVICE STATIONS, INC. (Re Loan NHAM v. UNITED SERVICE STATIONS, INC.) 1921175.

Page 501

628 So.2d 501
Ex parte UNITED SERVICE STATIONS, INC.
(Re Loan NHAM
v.
UNITED SERVICE STATIONS, INC.)
1921175.
Supreme Court of Alabama.
Sept. 24, 1993.

Page 502

Jack B. Hinton, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for petitioner.

Charles H. Morris III, Selma, for respondent.

Jack Drake of Drake & Pierce, Tuscaloosa, for amicus curiae Alabama Trial Lawyers Ass'n.

HORNSBY, Chief Justice.

The defendant, United Service Stations, Inc. ("United Service"), petitioned this Court for a writ of mandamus directing Judge Eugene W. Reese, of the Montgomery Circuit Court, to grant its motion to compel discovery of plaintiff Loan Nham's psychological records and to allow the deposition of her

Page 503

former psychologist. For the reasons discussed below, the writ is denied.

Loan Nham was a commercial tenant of United Service and operated a retail store on the leased premises. In April 1989, the ceiling of the restroom in the store collapsed on top of Nham, injuring her neck, shoulders, and back. Nham sued United Service and others in April 1991, alleging negligence and claiming physical and mental injury.

After receiving treatment for her injuries, Nham continued to suffer severe pain in her head and neck that physical therapy and prescription medication did not fully alleviate. In November 1992 she was referred to the Kirkland Clinic at the University of Alabama at Birmingham. The Kirkland Clinic specializes in "pain management." At the clinic, patient evaluation and treatment are performed by a team of doctors, including a psychologist.

Nham's attorney initially named Dr. Frank Brotherton, her Kirkland Clinic psychologist, on his witness list and had noticed Dr. Brotherton for deposition. However, these actions by Nham's attorney occurred before Nham invoked the psychotherapist 1-patient privilege of Ala.Code 1975, § 34-26-2, in relation to Dr. Brotherton. Once Nham raised the privilege, her attorney canceled the deposition of Dr. Brotherton and amended the witness list to replace Dr. Brotherton with Dr. Tazewell Jones, the psychologist currently treating Nham. There is no indication from the material before us that Dr. Brotherton will be used as a witness by Nham, and this opinion proceeds on that basis. United Service filed a motion to compel discovery of Nham's complete psychological records from Kirkland Clinic 2 and to depose Dr. Brotherton, the clinic psychologist who had been assigned to Nham's case.

Nham objected to United Service's motion to compel discovery and formally claimed the protection of the statutory psychotherapist-patient privilege. The trial court denied United Service's motion to compel and its "motion for reconsideration," ruling that Nham had not waived the psychotherapist-patient privilege. United Service responded by filing this petition for a writ of mandamus.

Mandamus is a drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court. Ex parte AmSouth Bank, N.A., 589 So.2d 715 (Ala.1991); Ex parte Day, 584 So.2d 493 (Ala.1991). At issue here is whether United Service has a "clear legal right" to discovery of Nham's psychological records and to depose Dr. Brotherton in the face of Nham's assertion of the psychotherapist-patient privilege.

Although Alabama law does not recognize a physician-patient privilege of confidentiality, the legislature has adopted a psychotherapist-patient privilege. Section 34-26-2, Ala.Code 1975, states:

"[T]he confidential relations and communications between licensed psychologists and licensed psychiatrists and clients are placed upon 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 communication to be disclosed."

(Emphasis added.)

This privilege provides a patient the right to refuse to disclose, and to prevent others from disclosing, confidential communications between the patient and psychotherapist made for the purposes of diagnosis or treatment of the patient's mental condition, and it encompasses notes or records made by the psychotherapist. Ex parte Rudder, 507 So.2d 411 (Ala.1987). United Service contends that either: 1) the psychotherapist-patient privilege does not exist in the context of an action where the complaint seeks damages for mental pain and anguish or 2) that

Page 504

even if the privilege exists, Nham has waived the privilege. We will address these arguments in turn.

I. Application of the Privilege

Some jurisdictions adopting a statutory psychotherapist-patient privilege have provided a list of exceptions from the privilege, such as where a patient relies on his mental condition as an element of a claim or defense in a civil proceeding; however, the Alabama legislature did not limit the privilege with specific exceptions. Compare, e.g., Cal.Evidence Code § 1010 et seq. (West 1966); Fla.Stat.Ann. § 90.503 (West 1979); Mass.Ann.Laws ch. 112, § 135A (Law.Co-op.1991); Tenn.Code Ann. § 24-1-207 (1992 Supp.) (psychiatrist only); Va.Code § 8.01-400.2 (Michie 1992). The Alabama psychotherapist-patient privilege, however, is subject to certain judicially created exceptions. This Court has recognized an exception to the privilege where, in a child...

To continue reading

Request your trial
390 practice notes
  • 27001 P'ship v. Kohlberg Kravis Roberts & Co., 1091191
    • United States
    • Supreme Court of Alabama
    • August 19, 2011
    ...do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So. 2d 133, 134 (Ala. 1995).' Ex parte Carter, [807 So. 2d 534,] 536 [(Ala. 2001)]."Ex part......
  • State v. Adams, CR–08–1728.
    • United States
    • Alabama Court of Criminal Appeals
    • November 5, 2010
    ...the plain language of the statute is clear, it must be construed according to its plain language.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993). “Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what......
  • 27001 P'ship v. Kohlberg Kravis Roberts & Co. (Ex parte Kohlberg Kravis Roberts & Co.), 1091191 and 1091206.
    • United States
    • Supreme Court of Alabama
    • August 19, 2011
    ...do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).’ Ex parte Carter, [807 So.2d 534,] 536 [ (Ala.2001) ].”Ex parte Mc......
  • Davis v. Self, Civil Action No. CV–12–S–2402–NW.
    • United States
    • U.S. District Court — Northern District of Alabama
    • February 25, 2013
    ...So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘[T]he question of subject matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Johnson, 715 S......
  • Request a trial to view additional results
390 cases
  • 27001 P'ship v. Kohlberg Kravis Roberts & Co., 1091191
    • United States
    • Supreme Court of Alabama
    • August 19, 2011
    ...do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So. 2d 133, 134 (Ala. 1995).' Ex parte Carter, [807 So. 2d 534,] 536 [(Ala. 2001)]."Ex part......
  • State v. Adams, CR–08–1728.
    • United States
    • Alabama Court of Criminal Appeals
    • November 5, 2010
    ...the plain language of the statute is clear, it must be construed according to its plain language.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993). “Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what......
  • 27001 P'ship v. Kohlberg Kravis Roberts & Co. (Ex parte Kohlberg Kravis Roberts & Co.), 1091191 and 1091206.
    • United States
    • Supreme Court of Alabama
    • August 19, 2011
    ...do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).’ Ex parte Carter, [807 So.2d 534,] 536 [ (Ala.2001) ].”Ex parte Mc......
  • Davis v. Self, Civil Action No. CV–12–S–2402–NW.
    • United States
    • U.S. District Court — Northern District of Alabama
    • February 25, 2013
    ...So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘[T]he question of subject matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Johnson, 715 S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT