Roberts v. Superior Court

• Decision Date: 11 April 1973
• Citation: 9 Cal.3d 330,508 P.2d 309,107 Cal.Rptr. 309
• Court: California Supreme Court
• Parties: , 508 P.2d 309 Janet Barbara ROBERTS, Petitioner, v. The SUPERIOR COURT OF BUTTE COUNTY, Respondent, Henry H. WEIST et al., Real Parties in Interest. Sac. 7963. In Bank

Page 309

107 Cal.Rptr. 309

9 Cal.3d 330, 508 P.2d 309

Janet Barbara ROBERTS, Petitioner, v. The SUPERIOR COURT OF BUTTE COUNTY, Respondent, Henry H. WEIST et al., Real Parties in Interest.

Sac. 7963.

Supreme Court of California,

In Bank.

April 11, 1973.

John N. Bach and Maxim N. Bach, Chico, for petitioner.

No. appearance for respondent.

Michael J. Conlan and Fitzwilliam, Memering, Stumbos & DeMers, Sacramento, for real parties in interest.

BURKE, Justice.

In this case we are faced with the problem of determining the scope of allowable discovery under the psychotherapist-patient privilege established by Evidence Code section 1014.

Janet Roberts, petitioner, was injured on March 24, 1971, in a collision with an automobile owned and operated by defendants Alice and Henry Weist. She subsequently filed an action for personal injuries alleging that as a proximate cause of defendants' negligence she was 'rendered sick, sore, lame, and disabled, and was damaged in the sum of ONE HUNDRED TWENTY FIVE THOUSAND DOLLARS ($125,000.00).'

In due course, defendants served written interrogatories upon petitioner inquiring inter alia whether she had undergone previous illnesses and institutional confinements during her lifetime and requesting a description of the injuries she claims to have suffered in the collision with defendants' vehicle. In response, petitioner indicated that she had been hospitalized for a prior automobile accident in March or April 1969 and for an overdose of pills in September 1969. Petitioner further stated that she 'received psychiatric treatment from Dr. Ernest W. Ely . . . for a few months, but he reported that there was nothing wrong with me. I have no after effects.' Petitioner described her injuries from the accident at issue herein as severe pain in the neck and back with accompanying dizzy spells and headaches.

Attached to petitioner's answers to defendants' interrogatories were various reports of the medical doctors who had treated her both before and after the collision with defendants' vehicle. Included were the handwritten notes of David W. Oberlin, M.D., which indicated, in an entry dated November 3, 1970, that petitioner had suffered a backache on and off since September 1969, the date of her attempted suicide. ¹ In his formal report to petitioner's counsel, Dr. Oberlin noted that petitioner stated she has 'had some mild back pain which began insidiously a few years ago, and whether this is related to or correlated with her previous auto accident I was unable to determine with the material available.' Dr. Oberlin made no correlation between petitioner's previous 'mild back pain' and her attempted suicide. The doctor diagnosed petitioner's injuries as a 'cervical strain, with tenderness out of proportion to the clinical findings.'

The report of John R. Clark, M.D., prepared after the accident at issue herein, and addressed to Dr. Oberlin, states that he had 'read the reports of Dr. Ely but was impressed that the (petitioner) seems to be making a satisfactory adjustment.' Dr. Clark made no reference to petitioner's current back injuries in relationship to her psychiatric treatment. With regard to petitioner's present injuries, Dr. Clark concluded that 'this young woman seemed to need some reassurance. In the face of such excellent health and negative neurologic exam, I would recommend no further work-up.'

Upon receipt of petitioner's answers and the doctor's reports discussed above, defendants subpoenaed all of petitioner's medical records in the custody of the various doctors who had treated her, including those of Dr. Ely, petitioner's psychotherapist. Dr. Ely refused to surrender his records unless ordered to do so by the court, on the ground that they were privileged. Thereafter, in a letter to the court, defendants requested an ex parte order to compel production by Dr. Ely. The court set the matter on calendar for argument and petitioner filed a memorandum of points and authorities in opposition to the motion. One day prior to the filing of petitioner's memorandum, however, defendants received the medical records of Drs. Clark, Phillip Morgans and Faustino Bernadett, each of which contained reports from Dr. Ely describing petitioner's psychotherapeutic treatment. Defendants removed their pending motion from the court's calendar stating that they would notice a formal motion at a later date.

Although petitioner's counsel failed to object immediately to this disclosure of Dr. Ely's records, eventually an order sealing the copies of the records possessed by defendants and their photocopy service was obtained by petitioner in a separate proceeding. (Roberts v. Conlan, Butte Super.Ct. #53864.) Defendants then filed a formal motion to compel production of the records. After a hearing, the motion was granted by the respondent court on the condition that Dr. Ely's records be deposited with the court clerk, open to inspection only by counsel accompanied by their medical examiners. ²

Upon petitioner's application, we granted an alternative writ of prohibition ordering that Dr. Ely's records be sealed and maintained in the office of the Butte County Clerk pending further order of this court. We have concluded that a peremptory writ of prohibition should issue barring discovery of Dr. Ely's records by defendants and that the records of Dr. Ely should be ordered returned to him.

Before proceeding to the merits of petitioner's claim, however, we must consider the use of the prerogative writ. In Pacific Tel. & Tel. Co. v. Superior Court, 2 Cal.3d 161, 169, 84 Cal.Rptr. 718, 723, 465 P.2d 854, 859, quoting from Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 185--186, 23 Cal.Rptr. 375, 373 P.2d 439, footnote 4, we held that "the prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases." In footnote 11 of our opinion in Pacific Tel. & Tel., 2 Cal.3d at p. 170, 84 Cal.Rptr. 718, 465 P.2d 854, however, we make it clear that an objection to the trial court's grant of discovery on irrelevancy grounds, as was the case in Pacific Tel. & Tel., is of an entirely different nature than a challenge to the grant of discovery when the trial court's order allegedly violates a privilege of the petitioning party. This distinction was set out in West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407, 415, 15 Cal.Rptr. 119, 122, 364 P.2d 295, 298 (cited with approval in Pacific Tel. & Tel. Co. v. Superior Court, Supra, 2 Cal.3d 161, 170, fn. 11, 84 Cal.Rptr. 718, 465 P.2d 854), where quoting from Ryan v. Superior Court, 186 Cal.App.2d 813, 816--817, 9 Cal.Rptr. 147, we stated: "One of the prime purposes of the Discovery Act is to expedite the trial of the action. This purpose will be defeated if appellate courts entertain petitions for prerogative writs by which a review of the orders of trial courts in discovery proceedings are sought and which do not clearly demonstrate an abuse of discretion by the trial court where discovery is denied, or a Violation of privilege or of the provisions of section 19 of article I of the Constitution of the state, where discovery is granted. . . .' (Italics added.)'

The need for the availability of the prerogative writs in discovery cases where an order of the trial court granting discovery allegedly violates a privilege of the party against whom discovery is granted, is obvious. The person seeking to exercise the privilege must either succumb to the court's order and disclose the privileged information, or subject himself to a charge of contempt for his refusal to obey the court's order pending appeal. The first of these alternatives is hardly an adequate remedy and could lead to disruption of a confidential relationship. The second is clearly inadequate as it would involve the possibility of a jail sentence and additional delay in the principal litigation during review of the contempt order. Thus, the use of the prerogative writ in a case such as this is proper. (See Code Civ.Proc., §§ 1086, 1103.)

We may now turn to the merits.

Evidence Code section 1014 provides in relevant part that, 'Subject to section 912 (waiver of privilege) and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege . . . or (c) The person who was the psychotherapist at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.' In In re Lifschutz, 2 Cal.3d 415, 423, 431--432, 85 Cal.Rptr. 829, 467 P.2d 557, we pointed out that because of the potential encroachment upon constitutionally protected rights of privacy by the compelled disclosure of confidential communications between the patient and his psychotherapist (cf. Griswald v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510), trial courts should carefully control compelled disclosures in this area. Thus, the psychotherapist-patient privilege is to be liberally construed in favor of the patient. (Op. cit., Supra, at p. 437, 85 S.Ct. 1678.)

Relying on Evidence Code section 1016, defendants first argue that petitioner has waived the privilege by bringing this action in which she claims to have been rendered 'sick, sore, lame and disabled.' Section 1016, setting out the patient-litigant exception to the psychotherapist-patient privilege, provides in part that, 'There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered...