Redding v. Virginia Mason Medical Center

• Decision Date: 15 August 1994
• Docket Number: No. 33961-3-I,33961-3-I
• Citation: 75 Wn.App. 424,878 P.2d 483
• Parties: Michell REDDING, Appellant, v. VIRGINIA MASON MEDICAL CENTER, Respondent.
• Court: Washington Court of Appeals

Page 424

75 Wn.App. 424

878 P.2d 483

Michell REDDING, Appellant, v. VIRGINIA MASON MEDICAL CENTER, Respondent.

No. 33961-3-I.

Court of Appeals of Washington,

Division 1.

Aug. 15, 1994.

John Thomas Costo, Bellevue, for appellant.

Philip John Vanderhoef, Mary H. Spillane, Williams, Kastner & Gibbs, Seattle, for respondent.

BECKER, Judge.

Tracy and Michell Redding were married in 1986. In connection with domestic violence charges in May 1989, the district court ordered Tracy, the husband, to undergo anger management counseling. Dr. Arden Snyder of the Virginia Mason Medical Center involved Michell in five joint counseling sessions with Tracy as part of Tracy's treatment. Dr. Snyder's written report to the district court mentioned Michell's drinking as a factor contributing to Tracy's anger.

Later, Michell petitioned for dissolution of the marriage. A custody battle ensued. Michell denied having ever said that she had an alcohol problem. Tracy asked Virginia Mason for copies of the records of the joint sessions. He wanted the court to see that Michell had admitted to Dr. Snyder that she had an alcohol problem. Virginia Mason released the records to Tracy without subpoena and without Michell's consent. Michell later sued Virginia Mason for emotional distress damages caused by breach of the psychologist-patient privilege.

The trial court granted Virginia Mason's motion for summary judgment. We affirm, but on narrower grounds than Virginia Mason advocates. Analogizing to the attorney-client privilege, we hold that in litigation arising between the joint patients the psychologist-patient privilege does not protect statements made by one of them to a therapist during a joint counseling session.

I.

In reviewing a summary judgment, the appellate court must draw all reasonable inferences from the pleadings, affidavits, depositions and admissions in the light most favorable to the nonmoving party. Hemenway v. Miller, 116 Wash.2d 725, 731, 807 P.2d 863 (1991). The reviewing court considers all facts submitted, engaging in the same inquiry as the trial court, Scott Galvanizing, Inc. v. Northwest EnviroServices, Inc., 120 Wash.2d 573, 580, 844 P.2d 428 (1993), and may affirm on any basis supported by the record. Hadley v. Cowan, 60 Wash.App. 433, 444, 804 P.2d 1271 (1991). It is unnecessary for the trial court to enter findings on summary judgment. CR 52(a)(5)(B). Any that are entered may be disregarded on appeal, because summary judgment determines issues of law, not issues of fact. Duckworth v. City of Bonney Lake, 91 Wash.2d 19, 586 P.2d 860 (1978). The moving party bears the burden of showing the absence of a material issue of fact. Safeco Ins. Co. of America v. Butler, 118 Wash.2d 383, 395, 823 P.2d 499 (1992).

Michell relies on the statutory psychologist-patient privilege, which reads:

Confidential communications between a client and a psychologist shall be privileged against compulsory disclosure to the same extent and subject to the same conditions as confidential communications between attorney and client, but this exception is subject to the limitations under RCW 70.96A.140 and 71.05.250.

RCW 18.83.110. ¹

The attorney-client privilege extends to documents that contain a privileged communication. Pappas v. Holloway, 114 Wash.2d 198, 787 P.2d 30 (1990). By analogy, the psychologist-patient privilege claimed by Michell applies to records of counseling to the extent that they document statements she made during the counseling session. Virginia Mason contends that the privilege did not apply to Michell's statements during the counseling sessions either because Michell manifestly did not intend her communications to be confidential; or because she waived the privilege by making the statements to Dr. Snyder in Tracy's presence; or because statements made during joint counseling are not privileged in litigation between the joint patients. ²

II.

Whether a patient reasonably intended a communication to be confidential in light of the surrounding circumstances calls for an objective inquiry. State v. Post, 118 Wash.2d 596, 612-13, 826 P.2d 172 (1992).

In Post, a murder defendant tried to exclude statements he had made to a Dr. Trowbridge in the course of an evaluation pursuant to sentencing for an earlier crime. Dr. Trowbridge saw Post only once, and told him that the interview results would not be confidential. The court held under these circumstances Post could not reasonably have expected the communication to be confidential and therefore the privilege did not arise.

In a proceeding to terminate her parental rights, it was manifest that a mother did not intend confidentiality of her communications with two clinical psychologists where the specific purpose of their evaluation of her was to provide some third party with the results thereof. In re Henderson, 29 Wash.App. 748, 752-53, 630 P.2d 944 (1981).

Michell was aware that Dr. Snyder would be filing a report with the district court. While this suggests Michell did not have the reasonable intent of confidentiality necessary to invoke the privilege, other circumstances present issues of material fact. The purpose of the joint sessions as explained to her by Dr. Snyder was therapeutic, not evaluative--to explore with each other "issues of alcohol and religion that seemed to be major issues ... and seemed to be sources of conflict." Dr. Snyder's report to the district court was in connection with domestic violence charges pending against Tracy. Like the trial court, we cannot say as a matter of law that Michell must have intended that her communications about her own alcohol problem were subject to disclosure in a report detailing Tracy's progress in anger management counseling.

Statements made to an attorney (and by analogy to a psychologist) in the presence of a third person waive the privilege normally attached to them. See State v. Wilder, 12 Wash.App. 296, 300, 529 P.2d 1109 (1974); State v. Anderson, 44 Wash.App. 644, 650-51, 723 P.2d 464 (1986), review denied, 109 Wash.2d 1015 (1987). Although such statements may ordinarily remain privileged when the third person is a joint client, ³ see e.g., In re Grand Jury Subpoenas, 89-3 and 89-4, 902 F.2d 244, 248 (4th Cir.1990), the statements are not privileged in litigation between the joint clients. Cummings v. Sherman, 16 Wash.2d 88, 97, 132 P.2d 998 (1943).

Taking all inferences in Michell's favor, she and Tracy were joint patients of Dr. Snyder, communicating with him for their mutual benefit. Their status compares with that of a husband and wife seeing an attorney as joint clients for the purpose of making wills. Michell did not waive the privilege as to her disclosures to Dr. Snyder merely because of Tracy's presence. These statements, however, were never privileged as between Michell and Tracy. ⁴ Our decision to affirm the grant of summary judgment is compelled by the rule set forth in Cummings:

When two or more clients employ the same attorney in the same matter, communications made by them in relation thereto are not privileged inter sese. By selecting the same attorney, each party waives his right to place those communications under the shield of professional confidence.... Thus, if two or more persons consult an attorney at law for their mutual benefit, and make statements in his presence, he may disclose those statements in any controversy between them or their personal representatives or successors in interest.

(Emphasis added.) Cummings, at 96, 132 P.2d 998. See also Billias v. Panageotou, 193 Wash. 523, 526, 76 P.2d 987 (1938) ("The rule is uniform that, in litigation between the same parties, communications that had been made to an attorney for the mutual...