Jones v. Abel

• Decision Date: 16 July 1993
• Docket Number: No. A93A0763,A93A0763
• Citation: 209 Ga.App. 889,434 S.E.2d 822
• Parties: JONES v. ABEL et al.
• Court: Georgia Court of Appeals

Page 822

434 S.E.2d 822

209 Ga.App. 889

JONES v. ABEL et al.

No. A93A0763.

Court of Appeals of Georgia.

July 16, 1993.

Reconsideration Denied July 30, 1993.

Certiorari Denied Dec. 3, 1993.

John Jones, pro se.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Roger S. Sumrall, Atlanta, for appellees.

ANDREWS, Judge.

Jones, a pseudonym used by the plaintiff/appellant, sued his former psychiatrist Abel and his clinic Behavioral Medicine Institute as the result of Abel's forwarding Jones' file to the attorney for Smith, a former employee of Jones involved in litigation with him. The file was sent pursuant to a request for production in that litigation to which Jones had not yet objected. The jury reached a verdict for the defendants and the court denied Jones' motion for j.n.o.v. Jones appeals, pro se.

The sole enumeration of error is that the trial court erred in denying Jones' motion for directed verdict at the conclusion of the evidence and his subsequent motion for j.n.o.v.

1. First, before considering the issue of the psychiatrist-patient privilege and the concomitant issues of discovery and waiver, the nature of the claim made by Jones against the defendants must be kept in view. In the pre-trial order, four claims were asserted against Abel and his clinic as the result of the release of the psychiatrist's records: 1) breach of the contract between the psychiatrist and his patient that a confidential and fiduciary relationship would be maintained; 2) public disclosure of private facts; 3) abandonment of the patient; and 4) failure "to apply to the treatment of Jones that degree of care and skill as, under similar conditions and like circumstances, is ordinarily employed by those members of the medical profession practicing as psychiatrists."

At the pre-trial conference, Jones, represented at trial by counsel, abandoned his breach of contract claim, opting to proceed in tort under the medical malpractice claim. Further, after the close of the evidence, the abandonment claim was withdrawn. The only two claims which were presented to the jury and upon which the jury was charged were the invasion of privacy claim and the malpractice claim.

In defense of these claims, Dr. Abel contended that his actions were in compliance with the requirements of Georgia law, specifically OCGA § 9-11-34(c)(2) and the standard of care of psychiatrists in the same or similar circumstances and that Jones was not damaged by the release of the records in any event.

2. Considering the issue of the motions for a directed verdict as to the liability of the defendants and j.n.o.v., the record reflects that, after the presentation of the defendants' case, counsel for Jones made a motion for directed verdict on the ground that the "defendant here had a responsibility to keep certain information private.... First, under the psychiatrist-patient privilege it is a matter of law in this state that that responsibility is absolute, without waiver or consent. Now, there is no consent for disclosure. And I submit ... that there is no evidence here that amounts to a waiver of the psychiatrist-patient privilege as a matter of law. The Sims v. State case [251 Ga. 877, 880(5), 311 S.E.2d 161 (1984) ] ... states basically that the psychiatrist-patient privilege cannot be waived, absent some express intentional act to do so. So I submit that the--even if [Jones] failed to file an objection, there was no waiver." The motion was further premised on the contention that the privilege is absolute and that OCGA § 9-11-34 may not require the production of privileged material, since it is by definition under OCGA § 9-11-26(b) not discoverable. ¹

The jury was charged under OCGA § 24-9-21(5) that communications between psychiatrist and patient are privileged. Further, the jury was charged that "only the patient can waive the privilege, and that the ... privilege prohibits a psychiatrist from disclosing patient communications to anyone without the patient's express permission or waiver of the privilege" and that waiver was the "intentional or voluntary relinquishment of a known right, benefit or advantage...."

" 'A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.' [Cit.] Even 'slight' evidence was regarded as sufficient to prevent the devastations of a directed verdict, in Worth v. Ga. Farm, etc., Ins. Co., [174 Ga.App. 194, 330 S.E.2d 1 (1985) ]. Where there is 'some evidence,' or 'any evidence' supporting the respondent's assertions, disputed issues are created which are for the jury's resolution." Grabowski v. Radiology Assoc., 181 Ga.App. 298, 301(3), 352 S.E.2d 185 (1986). The same standard applies when considering the denial of a j.n.o.v. Brandvain v. Ridgeview Institute, 188 Ga.App. 106, 112(1a), 372 S.E.2d 265 (1988), aff'd 259 Ga. 376, 382 S.E.2d 597, (1989); Ostroff v. Coyner, 187 Ga.App. 109, 115(3b), 369 S.E.2d 298 (1988).

So viewed, the evidence was that Jones, a certified public accountant and small businessman, had, as a teenager, been admitted to Anneewakee Institute by his mother and had entered into sexual relations with Poetter, the director of the facility. This abuse occurred during the late 1960s and early 1970s. Jones was thereafter admitted to Georgia Tech where he started his business of renting appliances to students. When he was 19 or 20 years old, in 1973, Jones voluntarily returned to Anneewakee as a counselor for a couple of years. During this period, while a counselor, he again engaged in sexual activity with Poetter. He later worked for DHR, went to night school and obtained an MBA and passed the CPA exam. He practiced accounting from 1977 until 1982, as well as continuing to conduct his rental business. He did not reveal his earlier abuse to anyone nor did he seek any psychiatric or psychological treatment during this period. After 1982, he gave up his accounting practice to focus on his businesses.

He hired Smith for the rental business in 1985 and they mutually agreed to part ways in 1987. In December 1988, Smith sued Jones, contending that he was owed commissions and expense reimbursement. Attorney Bynum was counsel for Smith in that litigation and Jones was initially represented by counsel.

In late 1986 and 1987, the Anneewakee scandal began to surface, resulting in a criminal investigation conducted by the local authorities and the Georgia Bureau of Investigation. In connection with this investigation, Jones was interviewed by the GBI concerning his involvement. He denied any involvement with Poetter or any students under his care while he was a counselor. In early 1987, Jones contacted another attorney for the purpose of representing him in attempting to keep his name out of the criminal investigation. The attorney spoke to the local district attorney and was able to keep Jones from being subpoenaed to the grand jury or testifying in the criminal prosecution. Jones never admitted to the district attorney his involvement with Poetter. Because of his anxiety over the situation, his attorney recommended that Jones seek counseling. Although contacted concerning joining the civil suit against Anneewakee, Jones declined, again not wanting to become involved.

On March 5, 1987, in response to his attorney's suggestion, Jones went to Dr. Abel, a psychiatrist. During that visit, Jones requested that the doctor falsify an insurance claim, which Dr. Abel refused to do. Jones saw Dr. Abel again on March 17 and then not again until December 1987. During these 1987 visits, the concern expressed by Jones to Dr. Abel was that he would be charged in the prosecution because of his involvement with Poetter and his role as a counselor. He told Dr. Abel that he had engaged in inappropriate acts with male students as well as Poetter while he was a counselor. Dr. Abel's diagnosis at that time was major depression. From December 1987 until March 1989, Dr. Abel did not see Jones. On March 7, 1989, Jones returned to Dr. Abel. At that time, Dr. Abel involved Ms. Bachand, a nurse who did assertiveness training and behavior modification, to assist in the treatment of Jones regarding his inability to relate to women.

The treatment continued with Dr. Abel, who diagnosed Jones as suffering from post-traumatic stress syndrome resulting from his involvement with the criminal investigation; major depression; paranoid personality; and dysthymia (lesser depression).

The Smith litigation continued in 1989 and Smith's attorney noticed Jones' deposition at least three times. Jones, whose attorneys withdrew from representing him in April 1989 because of a fee dispute, was representing himself. ² Jones did not appear for his deposition and Smith's attorney obtained a court order directing that Jones appear for his deposition on September 1, 1989. Instead of appearing pursuant to this court order, Jones asked Dr. Abel to evaluate his psychiatric condition and determine if he should be subject to the deposition. In response, Dr. Abel wrote a letter dated September 1, 1989, showing as the addressee the trial judge in the Smith litigation, stating that Jones had been under his care for the past 18 months, "being treated for depression. This problem is ongoing and presently my patient is under extreme amounts of stress. It would be contra-productive for him to appear in court for a deposition at this time." Dr. Abel did not mail the letter, but handed it to Jones for his use.

Jones then went to the scheduled deposition and presented Dr. Abel's letter and a handwritten note from himself. The deposition was not taken. In response, on September 7, 1989, attorney Bynum served upon Dr. Abel the request for production of "[a]ny and all reports, notes, memoranda correspondence, writings, documents, or physical tangible objects with respect to [Jones] which show: (a) Date or...