245 Cal. App. 4th 1394
Cal. Ct. App.2016Background
- The Medical Board investigated psychiatrist Geoffrey Phillips after a complaint alleging he had a sexual relationship with patient A.M.; investigators subpoenaed A.M.’s complete medical/treatment records from Phillips.
- A.M. refused to sign a release and objected to the subpoena, asserting the psychotherapist–patient privilege and constitutional privacy rights; Phillips also refused production and asserted the privilege.
- The Director petitioned the superior court under Gov. Code § 11187 to compel compliance; the trial court ordered a privilege log and conducted an in camera review of 21 progress notes Phillips identified.
- After in camera review the trial court found A.M.’s privacy interest outweighed the Director’s need for the notes and denied the petition; judgment dismissed and Director appealed.
- The Court of Appeal affirmed, holding the notes were protected by the psychotherapist–patient privilege and the Director failed to show a compelling state interest or a qualifying exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether psychotherapist–patient privilege bars production of progress notes to the Medical Board | The Board needs the records to investigate alleged sexual misconduct and protect public safety; state has compelling interest in disciplining physicians | Notes are privileged under Evid. Code § 1014 and Article I privacy; patient did not consent; disclosure requires compelling interest or exception | Privilege applies; Board did not show a compelling interest in these notes; petition denied |
| Standard required to overcome privilege | Board: good-cause balancing for administrative subpoenas (cites prior cases) | Privilege grounded in constitutional privacy requires compelling state interest to overcome | Court applies compelling-interest analysis for psychotherapist privilege and finds Board’s showing insufficient |
| Whether Evidence Code § 1020 (in-issue exception) applies | Board: communications relevant to breach of duty can be disclosed | Patient and therapist did not tender the content of communications; no waiver or in-issue invocation | § 1020 in-issue exception does not apply; no implied waiver |
| Whether Business & Professions Code § 2225 removes privilege in investigations | (argued for first time at oral argument) Board: disciplinary investigatory statute supersedes privilege | Not argued below; issue forfeited on appeal | Forfeited; court does not consider it on appeal |
Key Cases Cited
- Arnett v. Dal Cielo, 14 Cal.4th 4 (explains Medical Board investigative authority and investigator powers)
- Bearman v. Superior Court, 117 Cal.App.4th 463 (administrative subpoena for medical records requires showing records are relevant/material; privacy interest must be protected)
- Fett v. Medical Bd. of California, 245 Cal.App.4th 211 (medical-board subpoena and good-cause balancing in records disputes)
- People v. Stritzinger, 34 Cal.3d 505 (psychotherapist–patient privilege recognized as aspect of constitutional privacy; yields only for compelling state interests)
- In re Lifschutz, 2 Cal.3d 415 (foundation for confidentiality of psychotherapeutic communications in constitutional privacy)
- People v. Hammon, 15 Cal.4th 1117 (ties psychotherapist–patient privilege to California constitutional privacy)