Johnson v. Trujillo, 98SA451
| Decision Date | 10 May 1999 |
| Docket Number | No. 98SA451,98SA451 |
| Citation | 977 P.2d 152 |
| Parties | 1999 CJ C.A.R. 2517, 1999 CJ C.A.R. 3924 In re: Elizabeth JOHNSON, Plaintiff, v. Charlotte TRUJILLO and Martin McNicholas, Defendants. |
| Court | Colorado Supreme Court |
Stephen P. Holmes, Denver, Colorado, for Petitioner.
Rodman & Ross-Shannon, Bradley Ross-Shannon, Denver, Colorado, for Defendant Trujillo.
Anstine, Hill, Richards & Simpson, Michael S. Simpson, Denver, Colorado, for Defendant McNicholas.
Petitioner Elizabeth Johnson is a plaintiff in a personal injury case against Respondents/Defendants Charlotte Trujillo and Martin McNicholas arising out of a motor vehicle accident that occurred in November 1994. Upon Trujillo's motion, the trial court ordered that records concerning Johnson's ongoing psychiatric care and previous marriage counseling be disclosed. We issued a rule to show cause. As a matter of first impression, we hold that by making generic claims for damages for mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life that are incident to her physical injuries and that do not exceed the suffering and loss an ordinary person would likely experience in similar circumstances, Johnson has not impliedly waived her statutory physician-patient and psychotherapist-client privileges to keep these sensitive records private. Therefore, we now make the rule absolute.
This case arises from a motor vehicle accident that took place in Lakewood on November 26, 1994. Johnson alleges that she was forced to stop her vehicle in traffic when McNicholas spilled a load on the roadway, and at that time, she was rear-ended by a vehicle driven by Trujillo. Johnson claims that she sustained injuries to her head, neck, back, left wrist, and left shoulder caused by Respondents' negligence. Johnson also claims that she now suffers numbness in her left extremities and headaches as a result of the car accident. In addition to compensation for medical expenses and permanent injury, Johnson seeks damages for mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life.
On July 26, 1998, Respondents conducted a deposition of Johnson. In response to questions concerning the emotional distress that she had suffered as a result of the accident, Johnson stated that the accident had been "very upsetting" and "extremely emotional and scary." She further testified about her concern for other people involved in the accident and for herself because she was experiencing tingling symptoms. She stated that during the evening on the date of the accident, she realized that she had blacked out during part of the accident. Johnson also testified that she fainted a week after the accident, and her doctor told her at that time that he believed she had a concussion.
Johnson, who apparently had previously had surgery for cancer, expressed her fear about having to "go under the knife again" for neck surgery as a result of the injuries she sustained in the accident. She testified that she did not like the idea of someone cutting into her neck and that following the surgery, she would be required to wear a collar to immobilize her neck for eight weeks, which would restrict her activities. Additionally Johnson stated that the prospect of the surgery made her afraid for her son and was "really tough." She further explained that because of the physical pain she had experienced in the years since the accident, she had been forced to cancel many outings with her son, which made him sad and was hard for the energetic, young boy to understand.
During the deposition, Johnson also testified that she and her husband separated and filed for divorce in January 1998 and that the divorce had been finalized on July 9, 1998. Johnson stated that prior to the divorce, she and her ex-husband had received counseling from a marriage counselor. Johnson characterized the period of her divorce as "emotional" and "not a very fun happy time."
Johnson further testified in her deposition that she was seeing a psychiatrist, that this psychiatrist was treating her for depression, and that she was taking an antidepressant medication which she had started taking a year and a half earlier.
Trujillo filed a motion to compel production of various records concerning Johnson, including records of her treatment with her psychiatrist and records from her marriage counseling sessions with her ex-husband. Trujillo argued that Johnson had impliedly waived her physician-patient and psychotherapist-client privileges because she had injected her mental condition into the case by claiming damages for mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life. In response, Johnson argued that she had not impliedly waived her privileges merely by making these ordinary damage claims. She asserted that: (1) she was not alleging that the accident had caused her to suffer from a "mental condition"; (2) the treatment and counseling she had received from her psychiatrist and marriage counselor was related to her depression and divorce and not to the accident; (3) she was not seeking compensation for any of this treatment from the Respondents; and (4) she did not intend to call either the psychiatrist or the marriage counselor to testify in the case. Arguing that divulging the records would cause her substantial harm, Johnson asked the trial court to issue a protective order concerning her treatment and counseling records.
The trial court ordered Johnson to produce the records, and we issued a rule to show cause, which we now make absolute.
This court has original jurisdiction under C.A.R. 21 to review whether a trial court abused its discretion in circumstances where a remedy on appeal would prove inadequate. See Kourlis v. District Court, 930 P.2d 1329, 1330 n. 1 (Colo.1997). Here, if records of Johnson's psychiatric treatment and marriage counseling sessions "are indeed protected from disclosure by statutory privileges, then the damage to [her] will occur upon the disclosure of the records and regardless of the ultimate outcome of any appeal from a final judgment." Clark v. District Court, 668 P.2d 3, 7 (Colo.1983). Therefore, we find it appropriate to address the validity of the trial court's order in this original proceeding. See id.
We begin our analysis with a discussion of two distinct but closely related statutory privileges: the physician-patient privilege 1 and the psychotherapist-client privilege. Each of these privileges vests the patient/client with the power to prevent the doctor or counselor from disclosing information learned in the course of providing treatment:
13-90-107. Who may not testify without consent. (1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:
(d) A physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient ...
...
(g) A licensed psychologist, professional counselor, marriage and family therapist, social worker, or unlicensed psychotherapist shall not be examined without the consent of such licensee's or unlicensed psychotherapist's client as to any communications made by the client to such licensee or unlicensed psychotherapist, or such licensee's or unlicensed psychotherapist's advice given thereon in the course of professional employment....
§ 13-90-107(1), 5 C.R.S. (1998). 2 Although such privileges did not exist at common law, through the enactment of legislation they have become an integral part of our collective legal system. A few years ago, when the Supreme Court announced that federal law recognized a psychotherapist-patient privilege, the Court noted that "all 50 states and the District of Columbia have enacted into law some form of psychotherapist privilege." Jaffee v. Redmond, 518 U.S. 1, 12, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996).
In reviewing section 13-90-107 previously, we have explained that the purpose of these privileges is "to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation" that might be caused by the disclosure of information imparted to the doctor or therapist during the course of consultation for treatment. See Clark, 668 P.2d at 8. Furthermore, we stated in Clark that "[t]hese privileges, once they attach, prohibit not only testimonial disclosures in court but also pretrial discovery of information within the scope of the privilege." Id.
In Clark, we were asked to construe these privileges as qualified privileges, subject to a balancing of interests between a party's need to obtain the information and the privilege holder's interest in preserving confidentiality. See id. at 9. Noting that the statutory language of the privileges made no mention of a judicial balancing of interests, we declined to engraft such a process onto the statute. See id. Thus, we concluded that "[o]nce these privileges attach, therefore, the only basis for authorizing a disclosure of the confidential information is an express or implied waiver." Id.
Trujillo concedes that Johnson's psychiatric and marriage counseling records are privileged communications and therefore the trial court's order for disclosure may stand only if Johnson has impliedly waived her privileges. This issue is the crux of this case.
The party seeking to overcome the privilege bears the burden of establishing that the privilege has been waived. See id. at 8. In Clark, we established the following test for when courts...
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