Maynard v. HeerenMaynard v. Heeren
Lead Opinion
[¶ 1.] David, Cathy and Jon Maynard (Maynards) filed an intermediate appeal from the circuit court’s discovery order requiring them to provide Raymond Heeren (Heeren) with all psychotherapy records of Cathy Maynard.
FACTS AND PROCEDURAL HISTORY
[¶ 2.] David and Cathy Maynard are the parents of an autistic son, Jon. Heeren allegedly is the leader of a taxpayer group opposed to the expense generated by the Greater Hoyt School District’s special education placement of Jon. The Maynards claim that Heeren made false statements about them to Union County taxpayers through solicited telephone calls, newspaper advertisements and media interviews. The Maynards are suing Heeren for negligent misrepresentation, invasion of privacy, slander, and intentional infliction of emotional distress.
[¶ 3.] Through the discovery process, Heeren discovered that Cathy Maynard was seeing a psychotherapist, Dr. Douglas Anderson. Pursuant to the rules of discovery, Heeren moved for production of:
All progress notes, therapists’ notes, reports, correspondence, personality inventory answer sheets, statements for services rendered, flies and all other documents and tangible things generated or reviewed by ... [Dr.] Anderson ... in the course of evaluation and treatment of Cathy Maynard.
STANDARD OF REVIEW
[¶ 5.] We review the trial court’s rulings on discovery matters under an abuse of discretion standard. Weisbeck v. Hess,
LEGAL ISSUE AND ANALYSIS
[¶ 6.] Whether
[¶ 7.] At common law, there was no physician-patient privilege, and therefore no psychotherapist-patient privilege. Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5543 (1989). The proposal for a physician-patient privilege, known as Proposed Rule 504, was not adopted into the Federal Rules of Evidence. Id. The Military Rules of Evidence recognize no physician-patient privilege. Id. Nevertheless, virtually all 50 states and the District of Columbia have enacted a psychotherapist privilege into law in some form. Jaffee v. Redmond, — U.S.-,-n. 11,
[¶ 8.] Every privilege limits the evidence available in the judicial fact-finding process. State v. Jaques,
The physician-patient privilege expresses a long-standing policy to encourage uninhibited communication between a physician and his patient. It is a privilege that seeks to insure the free flow of health care, absent any fears on the patient’s part that anything he says might later be used against him.
People ex rel. D.K.,
[¶ 9.] The psychotherapist privilege in South Dakota is encompassed within the physician-patient privilege contained in
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.
[¶ 10.] It is generally recognized that the psychotherapy privilege can be waived by the patient. Jaffee, — U.S. at -, n. 14,
There is no privilege under§ 19-13-7 as to a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.
[¶ 11.] There exists a second statutory waiver of the physician-patient privilege which we conclude also applies in the instant case.
In any action or proceeding or quasi-judicial administrative proceeding, whenever the physical or mental health of any person is in issue, any privilege under§ 19-13-7 shall conclusively be deemed to be waived at trial or for the purposes of discovery under chapter 15-6 if such action or proceeding is civil in nature[.]
Even if the emotional and mental state of Mrs. Maynard is not an element of the May-nards’ claims for their other two causes of action, i.e., slander and negligent misrepresentation, the alleged mental harm must be used to prove up the element of injury required in both.
[¶ 12.] The patient-litigant exceptions of
[O]ne may be suspicious that the [physician-patient] privilege is being corrupted as an instrument for the suppression of truth when the patient invokes it to close the mouth of the one person in the best position to support his claims if they were true.
Id. The general rule is that unless there is a privilege, all relevant evidence is discoverable.
[¶ 13.] When a statute’s language is clear, certain and unambiguous, our interpretation is confined to declaring its meaning as plainly expressed. In re Certification of a Question of Law (Wiersma),
There is no privilege under§ 19-13-7 as to a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.
In any action or proceeding or quasi-judicial administrative proceeding, whenever the physical or mental health of any person is in issue, any privilege under§ 19-13-7 shall conclusively be deemed to be waived at trial or for the purposes of discovery under chapter 15-6 if such action or proceeding is civil in naturef.]
[¶ 14.] The words “no” and “conclusively” were placed in these evidentiary rules for a reason. When we interpret a statute or court rule, “[n]o wordage should be found to be surplus. No provision can be left without meaning. If possible, effect should be given to every part and every word.” Cummings v. Mickelson,
[¶ 15.] We hold that the waiver of privilege contained in
[¶ 16.] Full disclosure under
[¶ 17.] Existing law also provides an enforcement tool to assure that no privileged information is misused by the discovering litigant. The public disclosure of irrelevant confidential material by a discovering party would appear to us to be a prima facie violation of Rule 11.
[¶ 18.] We agree with other courts that the waiver of the privilege for litigation purposes does not waive the privilege in its entirety. Samms v. District Court, Fourth Jud. Dist.,
[¶ 19.] We hold that the waiver of privilege in this case under
Notes
. Carrie Maynard, daughter of David and Cathy Maynard, voluntarily dismissed out of the case as a plaintiff.
. In Jaffee, the Supreme Court for the first time recognized a judicially made psychotherapist privilege under the umbrella of FRE 501, which permits the Court to define new privileges by "interpreting common law principles ... in the light of reason and experience.” - U.S. at -,
. We have defined the common law action of invasion of privacy as: "[t]he unwarranted appropriation or exploitation of one's personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” Krueger v. Austad,
. Four elements are necessary to establish a pri-ma facie case of intentional infliction of emotional distress:
1. An act by defendant amounting to extreme and outrageous conduct; 2. Intent (or recklessness) on the part of the defendant to cause plaintiff severe emotional distress; 3. The defendant's conduct was the cause-in-fact of plaintiff's distress; and 4. The plaintiff suffered an extreme disabling emotional response to defendant's conduct.
Reeves v. Reiman,
. These are two commonly recognized exceptions to physician-patient privilege known as the patient-litigant exceptions. One covers cases where the mental condition is evidence of the element (as codified at
.See
To prove negligent misrepresentation, claimant must prove knowledge, or its equivalent, that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that, if false or erroneous, he will ... be injured in person or property. Finally, the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information and the other giving the information owes a duty to give it with care.
Rumpza v. Larsen,
. The trial court in this case was of the view that it was not professionally qualified to review the psychotherapist's file and thus declined to hold an in camera review. Because the only issue at this point is that of relevancy, which is a legal determination, the trial court is the only individual with the authority to make that determination. As this is an intermediate appeal, when the case is remanded to the trial court for the balance of the proceedings, the trial court is in
. If there is opposition to disclosure, tire party opposing disclosure must make specific objections to specific portions of the file. General objections to the entire file or large portions of it are not appropriate to allow the trial court to perform its required task of analyzing a specific objection to a specific document.
. Even this may be unnecessary under Court Rule No. 97-1, which goes into effect July 1, 1997 and is codified at
No depositions (except notices to take depositions), interrogatories, requests for documents, requests for admissions, and answers and responses thereto shall be filed with the clerk of the court.
Any discovery materials necessary for the disposition of any motion filed with the court shall be attached as an exhibit and filed with the party's motion.
If any party designates any or all of any deposition as evidence to be offered in the trial of any case, such deposition shall be filed with the clerk of the court at the same time as that party's designation.
Depositions used by a party only for the purpose of contradicting or impeaching the testimony of deponent as a witness, pursuant to § 26-6-32(a)(l), shall not be filed unless otherwise ordered by the judge presiding at the hearing or trial.
All depositions which have been read or offered into evidence by agreement of parties, or at the trial or submission of the case to the court, shall become a permanent part of the file.
After the ultimate conclusion of the case, depositions not offered or received into evidence may be withdrawn by the parties talcing the deposition. All unclaimed depositions may be disposed of by the clerk after giving thirty days' notice to the attorneys of record of the clerk's intention to do so.
. The author of the special writing finds fault with the opinion of this Court as being absolutist. Similar phrases such as "encroachment upon the privilege,” " 'carte blanche’ disclosure,” "indiscriminate disclosure,” "casual breach by every litigant in a single-minded pursuit of the last scrap of evidence," and "the sanctity of one's thoughts ought not be rummaged over merely to collect every existing dollop of intrusive detail," are also found. Declining to return fire in kind, we simply note this Court is engaging in nothing more than statutory construction of
Concurrence Opinion
(concurring in part and dissenting in part).
[¶22.] How much of one’s innermost secrets must be exposed when mental and emotional state become an issue in a lawsuit? In ordering virtually unlimited access to all records, I believe the circuit court abused its discretion by failing to oversee a process of allowing pertinent disclosure. Now the majority endorses the error by announcing a rule of “absolute” access to a patient’s psychotherapy records. While I generally concur with the Court’s analysis of privilege waiver under
[¶ 23.] Two themes predominate in this appeal: (1) the waiver of psychotherapist-patient privilege, and (2) the rational scope and purpose of discovery. On the first question, “[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....”
South Dakota has “a long-standing public policy to encourage uninhibited communication between a physician and his patient.” ... 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 § 7.02 (2d ed 1993).
Weisbeck v. Hess,
[¶ 24.] With the delicate and personal nature of the information divulged in therapy, courts should be cautious when considering a demand for total revelation.
Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rules of Evidence, a psychiatrist’s ability to help her patients
is completely dependent upon [the patient’s] willingness and ability to talk freely. This makes it difficult, if not impossible, for [a psychiatrist] to function without being able to assure ... patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ... there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. Advisory Committee’s Notes to Proposed Rules, 56 FRD 183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June I960)).
Jaffee v. Redmond, 518 U.S.-,-,
[¶ 25.] Unquestionably, the privilege is waived under what is often called the “patient-litigant” exception. Yet discovery must still be limited to relevant communications between patient and therapist when a mental or emotional condition arises as an element of a claim or defense.
The scope of pretrial discovery is, for the most part, broadly construed. Bean v. Best,76 S.D. 462 ,80 N.W.2d 565 (1957).SDCL 15-6-26(b) provides, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... ” A broad construction of the discovery rules is necessary to satisfy the three distinct purposes of discovery: (1) narrow the issues; (2) obtain evidence for use at trial; (3) secure information that may lead to admissible evidence at trial.
Kaarup v. St. Paul Fire and Marine Ins. Co.,
[¶ 26.] Discovery of medical information has long been protected, even after waiver. “[T]he legitimate interest in the privacy of the physician-patient relationship should not be subject to casual breach by every litigant in a single-minded pursuit of the last scrap of evidence which may marginally contribute to victory in litigation.” 1 J. Strong, McCormick on Evidence § 105 (4th ed 1992); see Harlan v. Lewis,
[¶ 27.] If medical information warrants vigilance, then the sanctity of one’s thoughts ought not be rummaged over merely to collect eveiy existing dollop of intrusive detail. Privilege waiver does not mandate all-inclusive disclosure. On the contrary, note Wein-stein:
A party may waive the privilege by placing his or her medical condition at issue. For example, a claim for mental pain and suffering waived protection of the psychotherapist-patient privilege because the claim put the patient’s mental condition at issue. A waiver will be found at least where the information sought is not an “unlimited’’ exposure of psychotherapist-patient communications, and is in fact closely tailored to the time period and subject matter of the claim.
3 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 504.07[8] (2d ed. 1997)(emphasis added). Here, the trial court took no heed that overbroad discovery might reveal information wholly irrelevant to the issues. Indiscriminate disclosure of all records, notes, and private communications in a psychotherapist’s file intrudes upon the sanctity of the patient’s mind, potentially exposing matters destructive to mental health. Although abuse of discretion is a demanding standard of review to overcome, State v. Dreps,
[¶ 28.] In this case, the court should have arranged for an in camera review of Maynard’s records to ensure only information relevant to the claim against Heeren came to light. We have noted, “[w]hen an individual makes the courageous choice to seek help, confidentiality begins. This Court should not discourage such courage.” Weis-beck,
[¶ 29.] Courts are empowered to prohibit exposure of extraneous information that may subject a patient to unnecessary “annoyance, embarrassment, oppression, or undue burden or expense.”
[¶ 30.] Despite the clear mandate in our statutes and a nationwide trend to limit dis
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.
Olmstead v. United States,
. In actions involving review of information falling under the attorney-client privilege, in camera review has been held to be a proper method for judging discoverability. United States v. Zolin,
. In 1993 the Federal Rules of Civil Procedure were amended in pertinent part as follows: "(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” (Emphasis added).
. The following reflects a compilation of various court rules from other jurisdictions setting forth a procedure for in camera inspection: If an objection is made on a claim of privilege, the burden is on the objecting party to request an in camera inspection and to provide the documents for review. The request should contain the factual and legal basis to support the claimed privilege or explain how -the privilege though waived makes the material nonetheless irrelevant for discovery purposes. The objecting party should review the documents and note with specificity any portions to which the claimed privilege does not apply. The objecting party should provide the documents to the judge presiding in the case, enclosed in a sealed and labeled container accompanied by an explanatory cover letter. The cover letter should identify file number and caption of the proceeding and explain the nature of the sealed materials, without compromising its essential secrecy. The container should be marked "IN CAMERA REVIEW” in bold print. Each page for which a privilege or relevancy objection is asserted shall be marked "privileged” or "irrelevant” or both. When the court opens this container it should isolate the materials it deems not discoverable and reseal it leaving the discoverable materials unsealed. Without revealing the specific nature of the nondiscoverable material the court should explain its ruling on the record for the benefit of the parties. The sealed material should be filed with the clerk so that it may be later available for appellate review. See, e.g., Beard v. Middle Tennessee Home Health Service,