Mrozinski v. Pogue, A92A1044

• Decision Date: 11 September 1992
• Docket Number: No. A92A1044,A92A1044
• Parties: MROZINSKI v. POGUE.
• Court: Georgia Court of Appeals

Page 405

423 S.E.2d 405

205 Ga.App. 731

MROZINSKI v. POGUE.

No. A92A1044.

Court of Appeals of Georgia.

Sept. 11, 1992.

Reconsideration Denied Oct. 6, 1992.

Certiorari Denied Jan. 7, 1993.

Paul S. Weiner, Jonesboro, for appellant.

Downey, Cleveland, Parker, Williams & Davis, Russell B. Davis, Houston D. Smith III, Marietta, for appellee.

BIRDSONG, Presiding Judge.

Anthony Mrozinski appeals from the grant of summary judgment to defendant Robert H. Pogue in Mrozinski's suit for wrongful disclosure of privileged information and breach of confidential relations. Dr. Pogue, as attending psychiatrist, treated Mrozinski's 14-year-old daughter for drug addiction and other mental health problems while she was a patient at Ridgeview Institute in Cobb County. The child's drug use began while she was in the custody of her mother. Legal custody of the child was placed in Mrozinski; she moved to Atlanta to live with him and to receive psychiatric treatment. In August 1987, Mrozinski admitted his daughter to Ridgeview Institute and, with her, he participated in therapy with Dr. Pogue. Mrozinski contends Pogue gave privileged information to the attorney of his former wife for use in a custody suit. Pogue contends he gave this information to the child's mother's attorney at the request of the child. There was no legal procedure authorizing disclosure of the information. The information given to Mrozinski's former wife's attorney consisted of the "Discharge Summary" prepared for Ridgeview Institute by the attending psychiatrist (Pogue) and an affidavit given by Dr. Pogue. The discharge summary and the affidavit described Mrozinski's conduct and reactions during family therapy, contained Pogue's observations and conclusions as to the interaction between Mrozinski and his daughter during family therapy, and expressed negative criticism of the father's conduct and reactions during therapy. In his affidavit Pogue recommended that custody of the child be returned to the mother.

The discharge summary was prominently stamped "Confidential--Do Not Redisclose." Mrozinski dismissed his suit against Ridgeview Institute. At the hearing on Pogue's motion for summary judgment, Pogue contended that the 14-year-old child was the only patient; that Mrozinski was not his patient; that Mrozinski attended family therapy only for the benefit of the child and to facilitate her recovery. Pogue contends that no privilege existed between himself and Mrozinski and that the only privilege belonged to the child. Secondly, Pogue contends Mrozinski does not have standing to complain of disclosure of psychiatric records of his daughter because the child requested that Pogue give an affidavit and her hospital record to her mother's attorney, and the child later, upon reaching the age of majority, executed a release of the records. Held:

1. On motion for summary judgment the burden is on the movant to establish the lack of a genuine issue of material fact and the right to judgment as a matter of law (OCGA § 9-11-56(c)); any doubt as to the existence of an issue is resolved against the movant and the respondent is given the benefit of all doubts and favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga.App. 1, 4-5, 126 S.E.2d 442; and see Thacker v. Matthews Tuxedo, 183 Ga.App. 474, 475, 359 S.E.2d 231. The court does not resolve issues of fact, but merely determines whether there is an issue of fact. Shankweiler v. McCall, etc., Ltd., 183 Ga.App. 257, 258, 358 S.E.2d 657. Construing the evidence according to these rules, we find issues of fact exist whether Mrozinski was a patient of Dr. Pogue.

"Before the psychiatrist-patient communications privilege established by [OCGA § 24-9-40] may be invoked, the requisite relationship of psychiatrist and patient must have existed, to the extent that treatment was given or contemplated." (Emphasis supplied.) Massey v. State, 226 Ga. 703, 704(4), 177 S.E.2d 79; see Fulbright v. State, 194 Ga.App. 827, 392 S.E.2d 298. The evidence, construed most favorably to Mrozinski, shows he consulted Pogue for treatment and assistance for himself in his family relations, particularly with his daughter. He sought assurance from Pogue that the therapy sessions would be confidential and he relied on these assurances by joining in the therapy with his daughter, and in reliance on those assurances he communicated freely with Pogue.

Pogue in his affidavit asserts that Mrozinski was not his patient. However, this is an assertion of a conclusion of law or of the ultimate fact to be decided, and it does not entitle Pogue to summary judgment. Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga.App. 737, 165 S.E.2d 441. Pogue also relies heavily on Mrozinski's testimony that treatment and recovery of his daughter were his first priority. However, the very use of the word "priority" gives rise to the inference there were other objectives in Mrozinski's participation in family therapy. In the affidavit which is the subject of this suit, Dr. Pogue stated: "It would be my recommendation that the father continue in the therapy process himself and begin to focus on his issues separate from [his daughter]." (Emphasis supplied.) This statement, with all inferences drawn in favor of Mrozinski, indicates that some therapy was begun as to Mrozinski during these sessions. The fact that Mrozinski was charged an additional fee when he participated in family therapy with his daughter is not controlling on the issue whether Mrozinski was a patient, but it may be considered by the jury. This is not a case such as Fulbright, supra, and Rachals v. State, 184 Ga.App. 420, 361 S.E.2d 671, for it cannot be said from the evidence in this case that no treatment was sought or contemplated by Mrozinski for himself.

Appellee contends that the Supreme Court in Kimble v. Kimble, 240 Ga. 100, 101, 239 S.E.2d 676 announced a new precise rule, to wit, that the psychiatrist-patient relationship exists only where the patient "went to the psychiatrist on [his] own volition for the purpose of gaining professional psychiatric assistance." Appellee's assertion is incorrect. Kimble did not state what was necessary but what was sufficient to form the privileged relationship in that case. It may be irrelevant whether a patient sought out a psychiatrist "on [his] own volition"; and a patient who did not originally seek psychiatric treatment for himself may nevertheless end up contemplating or being given assistance by the psychiatrist. The standard established in Massey, supra, is the test: the relation exists "to the extent that treatment was given or contemplated."

Appellee contends that any communication to Pogue from Mrozinski lost its privileged status where Pogue treated Mrozinski and his daughter jointly. The trial court seemed to be of the opinion that the privilege is waived by patients being treated jointly, and appellee likens the situation to clients being jointly represented by one attorney. We cannot accept these arguments. A waiver in a joint legal representation is really a waiver of the attorney's conflict of interest as to clients with antagonistic legal interests, and those clients' confidences are not generally waived as to third persons anyway. That situation cannot be likened to a psychiatrist's joint treatment of family members for their mutual benefit or for the primary benefit of one of them. The psychiatrist-patient privilege is not diminished by the fact that the patient sought or contemplated treatment jointly with other persons, or primarily for the benefit of another person who is in treatment by the same psychiatrist. The object of the privilege is to encourage the full trust of the patient so as to persuade him to reveal his innermost feelings and private acts so that the psychiatrist may give the most effective treatment. Perhaps nowhere is the patient more reluctant to reveal his true feelings and thoughts than in family therapy; for that very reason the viability of the privilege is essential. The privilege may be particularly important where the psychiatrist, in treating one person and knowing of another's deep concern for that person, encourages him to participate in therapy with the original patient. The strongest public policy considerations militate against allowing a psychiatrist to encourage a person to participate in joint therapy, to obtain his trust and extract all his confidences and place him in the most vulnerable position, and then abandon him on the trash heap of lost privilege. Legal remedies exist to allow the psychiatrist to properly divulge information where he or she believes a patient is in danger from another patient, so any such perceived danger is not sufficient reason to say the privilege evaporates, merely because of a person's participation in joint therapy.

We find no waiver of privilege by Mrozinski's participation as a patient, if he was one, and we find clear issues of material fact exist as to whether Mrozinski was given or contemplated psychiatric assistance by Pogue.

2. Appellee contends that no privileged information was disclosed because he did not reveal any statements made by Mrozinski, and that the "communications" (OCGA § 24-9-21(5)) protected by the privilege do not include observations, opinions and conclusions of the psychiatrist. Plummer v. State, 229 Ga. 749, 750, 194 S.E.2d 419 does not control this question because that doctor's conclusions were excluded by court order. OCGA § 24-9-21(5) makes privileged not only "communications" but also "admissions." What is protected is not merely words spoken, but " 'disclosures made in confidence.' " See Annandale at Suwanee v. Weatherly, 194 Ga.App. 803, 804, 392 S.E.2d 27. Since the legislature has not been more specific as to what constitutes an "admission" or "communication," we are reluctant to say anything which would allow a psychiatrist to reveal indirectly what he may not reveal directly, or to reveal a...