Arena v. SaphierArena v. Saphier
We hold that a psychologist may be compelled to reveal relevant confidences of treatment when the patient tenders her mental or emotional condition in issue during the course of litigation. Under such circumstances, the patient‘s communications to her psychotherapist should not be enshrouded in the veil of absolute privilege. Rather, important public policy considerations favoring liberal pretrial discovery compel disclosure of all relevant information. Nevertheless, we are not insensitive to the countervailing necessity of protecting the patient from needless humiliation, harassment and exposure. In our view, these antithetical interests can best be accommodated by the trial court‘s thorough in camera inspection of the consultation notes to determine their relevance.
The facts need not be recounted at length. Plaintiff and her husband instituted separate actions against her two treating physicians and their respective professional corporations. The complaints were subsequently consolidated. The record reflects that plaintiff was under the care of Dr. Saphier, an
In both complaints, plaintiff seeks damages for pain and suffering, medical expenses, loss of earnings and permanent injury by virtue of the loss of her capacity to conceive. In addition, plaintiff‘s husband seeks damages for loss of services and consortium. He further contends that his rights were permanently impaired because of his wife‘s present infertility. Both plaintiff and her husband candidly acknowledge that her present psychological condition is directly in issue by virtue of their allegations of mental anguish and depression caused by defendants’ negligence. In his depositions, plaintiff‘s husband testified that his wife suffers from acute depression and is a “different person” since the operations. In a similar vein, plaintiff related that she is frequently depressed and harbors deep anxiety pertaining to her future. These allegations were substantially corroborated in a report prepared by plaintiff‘s expert witness, a psychiatrist.
The present appeal concerns defendants’ attempt to obtain certain consultation notes of plaintiff‘s treating licensed psychologist,
Subsequent to plaintiff‘s deposition, counsel for defendant Saphier requested authorization for the release of Ms. Rapaport‘s records. An authorization was executed by plaintiff and ultimately forwarded to the psychologist. Ms. Rapaport responded with an edited summary of two office visits. The first memorialized a telephone conversation between the psychologist and Dr. Saphier in which the latter allegedly stated that there was no possibility of an ectopic pregnancy. The excerpt from the second visit stated in conclusory terms that plaintiff continued to suffer from depression caused by her inability to conceive. The document reflects that other materials were deleted because of their alleged lack of pertinence.
Following receipt of these consultation notes, defendant‘s attorney demanded copies of all records in accordance with the terms of the authorization. In response, plaintiff‘s counsel adopted the position that all consultation notes pertaining to treatments prior to August 1980 were irrelevant and, hence, not discoverable. Thereafter, Ms. Rapaport‘s records were subpoenaed. Pursuant to the agreement of counsel, the return date of
The trial judge subsequently rendered an oral opinion in which he held that the psychologist-patient privilege had been waived because plaintiff‘s mental and emotional condition constituted a material element of her claim for damages. The court further concluded that prior instances of treatment were relevant with respect to the questions of cause and aggravation of plaintiff‘s condition. The trial judge thus directed that Ms. Rapaport‘s office logs and records pertaining to plaintiff‘s treatment prior to 1980 be disclosed. However, the court issued a protective order precluding discovery of consultation notes and letters plaintiff had written to Ms. Rapaport during the course of her treatment. Although the order was not specific with respect to dates, we construe it as protecting only those records bearing upon plaintiff‘s treatment between 1974 and 1980. We note in that regard that plaintiff voluntarily supplied all records with respect to subsequent treatment. The order is also somewhat ambiguous with regard to whether deposition testimony may be elicited pertaining to plaintiff‘s confidential communications to her psychologist during the earlier period of time. In that regard, the order provides that Ms. Rapaport‘s “conclusions as to diagnosis, causation, prognosis, aggravation, and nature of treatment” may be the subject of inquiry. However, the order further reads that “such information is not discoverable through consultation notes” of treatment sessions.
Initially, we reject defendants’ argument that the confidential communications between plaintiff and her psychologist were not privileged. In support of that contention, defendants cite
We disagree. In our view,
In contrast, the psychologist-patient privilege was created by the Legislature two years earlier. The privilege was adopted as part of a comprehensive statutory scheme designed to license and regulate practicing psychologists. This legislation and the subsequent enactment pertaining to the physician-patient privilege are wholly distinct and cannot fairly be read in pari materia. State v. DiCarlo, 67 N.J. 321, 325-326 (1975); International Broth. of Elec. Workers v. Gillen, 174 N.J. Super. 326, 329-330 (App.Div. 1980); Mascola v. Mascola, 168 N.J. Super. 122, 125-126 (App.Div. 1979). We cannot properly invoke the doctrine to “engraft the terms of one statute onto another merely because the general subject matters of the two enactments are similar.” International Broth. of Elec. Workers v. Gillen, supra, 174 N.J. Super. at 330.
Moreover, we can readily conceive of a reasonable basis to distinguish between a physician treating a disease and a psychologist endeavoring to cure an emotional or mental problem. Cf. Kerr v. Kerr, 129 N.J. Super. 291, 295 (App.Div. 1974). The nature of psychotherapy might well justify a greater degree of confidentiality and protection than is generally afforded medical treatment of a physical condition. The nature of the psychotherapeutic process is such that full disclosure to the therapist of the patient‘s most intimate emotions, fears and fantasies is required. The patient rightfully expects that his personal revelations will not generally be subject to public scrutiny or exposure.3 We recognize that “[m]any physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a [psychologist] must have his patient‘s confidence or he cannot help him.” Taylor v. United States, 222 F.2d 398, 401 (D.C. Cir.1955). Thus, the psychologist-patient privilege has won legislative recognition in many states in the face of legal antipathy toward privileges in general and the physician-patient privilege in particular.4 So too,
This distinction was implicitly recognized by our Legislature when it enacted
The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.
By its express terms, the statutory protection accorded to confidential communications between a psychologist and his patient is coterminous with that provided under the attorney-client privilege. Cf. Rosegay v. Canter, 187 N.J. Super. 652, 655 (Law Div. 1982). We, thus, conclude that the unqualified exemption provided by
We are convinced that these principles apply with equal force here. As we have noted, the purpose of the psychologist privilege is to preclude the humiliation of the patient and the exposure of his most intimate thoughts and emotions. It has been said that the patient confides to his psychologist “more utterly than anyone else in the world.... Most patients who undergo psychotherapy know that is what will be expected of them, and that they cannot get help except on that condition.” Taylor v. United States, supra at 401. The privilege is thus designed to facilitate the necessary free flow of communication. It would be too much to expect patients to freely confide in their therapist “if they knew that all they say — and all that the [psychologist] learns [from it] — may be revealed to the whole world from a witness stand.” Ibid. On the other hand, when the patient himself discloses mental or emotional problems by instituting an action in which they are in issue, common notions of fairness clearly compel at least limited disclosure of otherwise confidential communications. See Lazorick v. Brown, supra, 195 N.J. Super. at 452. See also Munzer v. Swedish American Line, 35 F. Supp. 493, 497 (S.D.N.Y. 1940); City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26, 28 (Sup.Ct. 1951); Meyer v. McDonnell, 40 Md. App. 524, 392 A.2d 1129, 1134-1135 (1978); State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo.Sup.Ct. 1968). In all fairness, a patient should not be permitted to establish a claim while simultaneously foreclosing inquiry into relevant matters. See “Model Psychotherapist-Patient Privileges,” 4 Harv.J.Legis. 307, 322 (1968); Fisher, “The Psychotherapeutic Profession and the Law of Privileged Communications,” 10 Wayne L.Rev. 609, 644 (1964). Rigid adherence to the letter of the privilege under these circumstances would promote suppression of the truth. See, e.g., State v. Briley, 53 N.J. 498, 506 (1969); In re Selser, 15 N.J. 393, 405-406 (1954).
Here, the trial judge sought to reconcile plaintiff‘s privacy interests with defendants’ pretrial discovery rights by requiring disclosure of the psychologist‘s office logs and permitting limited inquiry into her “conclusions as to diagnosis, prognosis, aggravation and nature of treatment.” However, he precluded defendants from reviewing the psychologist‘s consultation notes and letters pertaining to treatment of the patient between 1974 and 1980. We are convinced that the trial judge erred in that respect. It is entirely conceivable that all or