Weisbeck v. Hess

• Decision Date: 09 November 1994
• Docket Number: No. 18509,18509
• Citation: 524 N.W.2d 363
• Parties: James WEISBECK, Plaintiff and Appellee, v. James HESS and Mountain Plains Counseling Center, Petitioners and Appellants.
• Court: South Dakota Supreme Court

Page 363

524 N.W.2d 363

James WEISBECK, Plaintiff and Appellee, v. James HESS and Mountain Plains Counseling Center Petitioners and Appellants.

No. 18509.

Supreme Court of South Dakota.

Argued April 25, 1994.

Reassigned June 30, 1994.

Decided Nov. 9, 1994.

Steven C. Beardsley, Mary A. Gubbrud, Lynn, Jackson, Shultz & Lebrun, Rapid City, for plaintiff and appellee.

J. Crisman Palmer, Talbot J. Wieczorek, Gunderson, Palmer, Goodsell & Nelson, Rapid City, for petitioners and appellants.

HENDERSON, Retired Justice (on reassignment).

PROCEDURAL HISTORY/ISSUES

This is an intermediate appeal which poses a question of first impression for this Court. James Weisbeck (Weisbeck) brought suit against Dr. James Hess (Hess), sole owner of Mountain Plains Counseling Center, alleging professional negligence.

During discovery, Weisbeck requested that Hess produce a list of his patients from the previous seven years. Weisbeck also sought the right to depose Tom Terry, Hess' personal counselor. Hess refused both requests on numerous grounds, including the claim that compliance would violate psychologist-patient privilege.

On October 1, 1993, the trial court issued an Order requiring Hess to turn over his client lists to the court where they would be kept sealed until further order. Permission was also given by the trial court to depose Terry with admissibility of his testimony to be determined at a later date. Hess responded by applying for an intermediate appeal, granted by this Court on October 29, 1993. We address the following issues:

I. Did the trial court abuse its discretion by ordering Hess to divulge his list of patients? We hold that it did.

II. Did the trial court abuse its discretion in allowing Weisbeck to depose Hess' counselor? We hold that it did.

Because the trial court's order would require an improper violation of privileged medical confidentiality, we reverse said order.

FACTS

During November 1986, Weisbeck's wife of 12 years, Cindy, began counseling sessions with Hess, a licensed psychologist and psychology professor at Black Hills State University (BHSU). Although Weisbeck occasionally received counseling, Hess contends their meetings were only in conjunction with Cindy's counseling. After June 1987, when Cindy began seeing other counselors at Mountain Plains, Hess purportedly never professionally counseled her again. However, that following September, Hess hired her as a part-time secretary.

Weisbeck discovered an envelope containing concert tickets with a poem signed, "Love, Jim," in October 1988. Cindy expressed to her husband that Hess was in love with her. Thereafter, she terminated her employment with Mountain Plains. Five months later, Weisbeck found a love letter from Hess to Cindy wherein Hess expressed a lifelong commitment to her. Hess has since admitted to having sexual relations with Cindy during 1989. All of this having occurred while Cindy and Weisbeck were still married. However, the two divorced in 1990. That same year, Hess, who was also married during these events, divorced his third wife and began consulting with social worker Tom Terry about Hess' involvement with a former patient.

Alleging breach of fiduciary duty, fraud, and seduction, Weisbeck filed a complaint in June 1992 against Hess and Mountain Plains seeking compensatory and punitive damages for Hess' romantic relationship with Cindy, which may have begun while Cindy was under Hess' direct professional care. During discovery, Weisbeck requested a list of Hess' clients from both his private practice and at BHSU over the previous seven years. He also sought to depose Terry about Hess' relationship with Cindy. Hess maintains that he did not begin his relationship with Cindy until 20 months after their counseling sessions ended and refuses to produce the requested information asserting that it is protected privileged information. The trial court granted Weisbeck's motion to compel. Hess appeals.

DECISION

I. Hess' patient list is privileged.

Essentially, this case requires this Court to conceptualize and decide issues on the scope of discovery, doctor-patient privilege, and rights of individuals not party to this litigation.

It is settled law that "[a]ll relevant matters are discoverable unless privileged." Kaarup v. St. Paul Fire & Marine Ins., 436 N.W.2d 17, 20 (S.D.1989). Challengers to a trial court's evidentiary rulings must prove an abuse of discretion. Stormo v. Strong, 469 N.W.2d 816, 820 (S.D.1991). See Aberle v. Ringhausen, 494 N.W.2d 179, 182-83 (S.D.1992) (applying an abuse of discretion standard in reviewing orders regarding discovery). By contending that the discovery order violates a confidential privilege, Hess basically raises a question of statutory interpretation. Construction of a statute is a question of law and is, therefore, fully reviewable without deference to the decision of the trial court. Reid v. Huron Bd. of Educ., 449 N.W.2d 240, 242 (S.D.1989).

Pursuant to SDCL 19-13-7, "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition[.]" It is understood, per SDCL 19-13-8, that the patient's psychotherapist at the time of the communication has the authority to claim the privilege but only on behalf of the patient. According to SDCL 19-13-6(4):

A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.

Hess asserts such communication embodies his list of patients who, in the course of seeking his care, divulge private and personal information. See SDCL 36-27A-38 (the confidential relations and communications between a licensed psychologist and a person consulting him in his professional capacity are confidential). Writing for the majority in Hogue v. Massa, 80 S.D. 319, 123 N.W.2d 131, 133 (1963), Supreme Court Judge Alex Rentto stated that South Dakota has "a long-standing public policy to encourage uninhibited communication between a physician and his patient." To compel disclosure of a psychotherapy patient's identity, is to directly harm her privacy interests. This harm is exacerbated by the stigma that society often attaches to mental illness. Scull v. Superior Court, 206 Cal.App.3d 784, 254 Cal.Rptr. 24, 26 (1988). If a patient knows that the privilege is fraught with exceptions, she is liable to withhold information or avoid therapy altogether. 2 Scott N. Stone & Robert K. Taylor, TESTIMONIAL PRIVILEGES Sec. 7.02 (2d ed. 1993).

Weisbeck wants the list so he can question Hess' former female patients to bolster his claim that his marriage fell victim to Hess' (alleged) usual ploy of taking advantage of vulnerable female patients. However, this discovery fishing expedition does not provide the facts or rationale necessary to violate the privacy of uninterested parties. Releasing the names of these clients would directly discourage uninhibited communication, due to Weisbeck's mere suspicion that such information may possibly contain relevant evidence. This plan is not "reasonably calculated to lead to the discovery of admissible evidence." SDCL 15-6-26(b)(1). Nor is it enough to set aside the privilege. 23 AM.JUR.2D, Depositions & Discovery Sec. 250 (1983).

Patients will be further damaged when they learn that seeking psychotherapy can unnecessarily become a matter of public record. Albeit the trial court has ordered the list "kept sealed until further order by the Court," it logically remains that such a command does not truly protect. In truth, the list is "sealed" while in Hess' confidential possession. However, the only way the list can serve Weisbeck's discovery interests is by revealing the names. Alas, the privilege has been nullified by the trial court. Schechet v. Kesten, 372 Mich. 346, 126 N.W.2d 718, 720 (1964). Simply put, the trial court's ruling defeats the purpose behind the privilege.

Weisbeck's authorities state that the physician-patient privilege is analogous to the psychotherapist-patient privilege. Not necessarily so. As one commentator has noted, "a person in psychotherapy, by and large, visits his psychiatrist with the same secrecy that a man goes to a bawdy house." Scull, 254 Cal.Rptr. at 26 (quoting Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L.Rev. 175, 188, n. 46 (1960)). "A physical ailment may be treated by a doctor whom the patient does not trust, but if a psychologist or psychiatrist does not have the patient's trust, the therapist cannot treat the patient." Bond v. District Court, 682 P.2d 33, 38 (Colo.1984) (citing Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955)). When an individual makes the courageous choice to seek help, confidentiality begins. This Court should not discourage such courage. The privilege covers that information "which is necessary and proper to enable him to perform his duty or act in his professional capacity[.]" 97 C.J.S. Witnesses Sec. 295 (1957). It may extend to include those communications made by a patient which tends to blacken her character. Id. Thus, the privilege should cover any form of communication made as a part of the therapeutic relationship. TESTIMONIAL PRIVILEGES at Sec. 7.10. Hence, therapy mandates name confidentiality.

A similar discovery request arose with In re Zuniga, 714 F.2d 632 (6th Cir.1983), where two psychotherapists were allegedly involved in a fraudulent billing scheme. During its discourse on the privilege, the court recited Report No. 45, Group for the Advancement of Psychiatry 92 (1960) quoted in Advisory Committee's Notes to...