Weisbeck v. Hess

WEISBECK, Plaintiff James Appellee,

James HESS and Mountain Plains Center,

Counseling Petitioners Appellants.

No. 18509.

Supreme Court of Dakota. South

Argued April 1994.

Reassigned June 1994.

Decided Nov. Gubbrud, Beardsley, Mary

Steven C. A. Jackson, Lebrun, Lynn, Rapid City, Shultz & plaintiff appellee. Palmer, Wieczorek, J. Crisman Talbot J. Gunderson, Palmer, Nelson, Rap- Goodsell & City, petitioners appellants. id (on HENDERSON, Retired Justice reas- signment).

PROCEDURAL HISTORY/ISSUES appeal poses This is an intermediate question impression of first for this Court. (Weisbeck) brought James Weisbeck suit (Hess), against Dr. sole James owner Center, Counseling alleging Mountain Plains professional negligence. later, a love letter requested that months Weisbeck found

During discovery, Weisbeck Cindy expressed patients from Hess to wherein Hess produce a list of his Hess lifelong her. Hess has sought commitment to years. also previous seven Weisbeck having since admitted to sexual relations Terry, person- right depose Tom Hess’ having Cindy diming 1989. All of this with requests on Hess refused both al counselor. Cindy still occurred while and Weisbeck were including grounds, the claim that numerous However, the two divorced in 1990. married. compliance psychologist-patient violate would Hess, year, who was also married That same privilege. events, his third during these divorced wife the trial court issued October On began consulting with social worker Tom requiring Hess to turn over his an Order Terry about Hess’ involvement with a former to the court where would be client lists kept sealed until further order. Permission fraud, Alleging fiduciary duty, breach given by depose trial court to was also seduction, complaint filed a Weisbeck testimony Terry admissibility of his with against June 1992 Hess and Mountain Plains at a later date. Hess re- be determined compensatory punitive damages seeking ap- sponded by applying for an intermediate relationship Cindy, for Hess’ romantic with granted by peal, this Court on October begun Cindy un- while following issues: 1993. We address During der Hess’ direct care. the trial court its discre- I. Did abuse discovery, requested a Hess’ Weisbeck list of by ordering divulge tion Hess to private practice clients from both his and at patients? his list of hold that We years. previous over the seven He BHSU it did. sought depose Terry also about Hess’ II. Did the trial court abuse its discre- Cindy. relationship with Hess maintains allowing depose tion Weisbeck to begin that he did not with Hess’ counselor? We hold that it Cindy until months after their did. produce sessions ended and refuses to the trial court’s order would re- Because requested asserting information it is improper privileged quire an violation of protected privileged information. The trial confidentiality, we reverse said or- medical compel. granted Weisbeck’s motion to der. appeals. Hess FACTS DECISION During November wife of Weisbeek’s Hess’.'patient privileged. I. list is years, Cindy, began counseling sessions Essentially, requires this case this Court Hess, psy- a licensed conceptualize and decide issues on the chology professor at Black Hills State Uni- discovery, doctor-patient privilege, (BHSU). versity Although Weisbeck occa- rights party of individuals not to this sionally counseling, received Hess contends litigation. conjunction meetings their were counseling. Cindy’s After June when It that “[a]ll is settled law relevant Cindy began seeing other counselors privileged.” discoverable matters are unless Plains, purportedly Mountain never Ins., Kaarup v. St. Paul Fire & Marine professionally again. counseled her Howev- (S.D.1989). Challengers N.W.2d er, following September, Hess hired her evidentiary rulings prove must court’s secretary. part-time as a Strong, an abuse of discretion. Stormo v. (S.D.1991). envelope Weisbeck discovered an contain- 469 N.W.2d See Aberle (S.D. poem signed, Ringhausen, concert tickets with a 494 N.W.2d 182-83 1992) “Love, Jim,” Cindy (applying in October 1988. ex- an abuse of discretion stan pressed reviewing to her husband that Hess was love dard orders discov Thereafter, ery). By contending her that the or with her. she terminated privilege, employment Five der violates a confidential Mountain Plains. Privileges (2d statutory Taylor, basically question inter raises 7.02 Testimonial of a ed. pretation. Construction statute is is, therefore, fully question of law and re question Weisbeck wants the list so he can viewable without deference to the decision of Hess’ former female to bolster his Educ., the trial court. Reid v. Huron Bd. of marriage claim that his fell victim to Hess’ (S.D.1989). 240, 242 449 N.W.2d (alleged) ploy taking usual advantage of However, patients. vulnerable female 19-13-7, pa “[a] Pursuant SDCL discovery fishing expedition provide does not privilege tient has a to refuse to disclose necessary the facts or rationale to violate the prevent any person disclosing other privacy parties. of uninterested Releasing confidential communications made for the directly names of these clients would purpose diagnosis or treatment of his communication, discourage uninhibited due physical, mental condition[.]” or emotional suspicion to Weisbeck’s mere that such infor- understood, 19-13-8, per It is that the may possibly mation contain relevant evi- patient’s psychotherapist at the time of the plan “reasonably dence. This is not calculat- authority communication has the to claim the discovery ed to lead to the of admissible privilege but on behalf of the 15-6-26(b)(l). evidence.” SDCL Nor is it 19-13-6(4): According to SDCL enough to set privilege. aside the Am. 23 Jur.2d, Depositions if Discovery § communication is “confidential” & 250 (1983). persons, intended to be disclosed to third except persons present to further the in- damaged Patients will be further when consultation, patient in

terest of exami- seeking psychotherapy learn that can nation, interview, persons reasonably or unnecessarily public become a matter of rec necessary for the transmission of the com- ord. Albeit the trial court has ordered the munication, persons participat- or who are “kept by list sealed until further order diagnosis in the and treatment under Court,” logically it remains that such a com physician psycho- the direction of the truly truth, protect. mand does not therapist, including members of the list is “sealed” while Hess’ confidential family. tient’s However, possession. only way the list can serve Weisbeck’s interests is Hess asserts such communication embod Alas, by revealing privilege the names. who, ies his list of the course of by has been nullified the trial court. Sche care, seeking divulge private person his Kesten, chet v. 372 Mich. 126 N.W.2d (the al information. See SDCL 36-27A-38 (1964). Simply put, 720 the trial court’s confidential relations and communications be ruling purpose privi defeats the behind the psychologist person tween a licensed and a lege. consulting professional capacity him in his confidential). Writing majority physi- for the authorities Weisbeck’s state that the sa, Hogue cian-patient privilege analogous psy- v. Mas 80 S.D. 123 N.W.2d to the (1963), Supreme Judge chotherapist-patient privilege. 133 Court Alex Not neces- noted, long sarily Rentto stated that “a South Dakota has so. As one commentator has “a standing public policy encourage person psychotherapy, by large, uninhibit visits physician psychiatrist secrecy ed communication between a his with the same that a Scull, patient.” compel psy- goes bawdy To disclosure of a man to a house.” 254 identity, Slovenko, chotherapy patient’s directly Cal.Rptr. (quoting Psychia- is to 26 privacy try harm her interests. harm This and a Second Look at the Medical Privi- (I960)). 175, 188, by stigma society lege, Wayne exacerbated often n. L.Rev. Superior physical may attaches to mental “A illness. Scull v. ailment be treated Court, trust, Cal.App.3d Cal.Rptr. if doctor whom the does not but privi- psychiatrist If a knows that the does not have trust, lege fraught exceptions, patient’s therapist she is hable cannot treat Court, therapy patient.” to withhold information or avoid al- Bond v. District (Colo.1984) together. Taylor (citing Scott N. Stone & Robert K. P.2d v. Unit- (D.C.Cir.1955)). case-by-case basis. Id. at States, considered on a 222 F.2d ed courageous makes the individual When an confidentiality begins. help, to seek choice mind, “case-by-case basis” we theWith discourage cour- such should This Court anonymous patients whose iden- consider the information covers that age. example, a herein. For tities are at risk him necessary proper to enable “which is may been the victim of who woman duty or act in his perform his may not confront the abuse as a child § 295 capacity[.]” 97 C.J.S. Witnesses eventually years may problem for but wish (1957). may include those com- It extend to By practical privacy. do so with utmost patient which tends made

munications reason, potential dam- one assume Thus, the Id. to blacken her character. day stranger age should one to this woman any form of communi- privilege should cover interrogate door to her about come to her therapeutic part as a cation made her and her possible sexual liaisons between PRIVILEGES relationship. Testimonial less intru- mental health counselor. Other Hence, con- therapy § mandates name 7.10. means, counsel, may em- be sive skillful fidentiality. advantage taking ployed, to learn if Hess is vulnerability. patients’ Con- of his female discovery request arose with A similar case, privacy psycho- cerning such (6th Cir.1983), Zuniga, F.2d 632 re compelled to reveal therapist should not be allegedly psychotherapists were where two Parker, Boddy patients’ names. his billing scheme. in a fraudulent involved Scull, (1974); A.D.2d 358 N.Y.S.2d privilege, During on the its discourse Cal.Rptr. under the at 28. We hold 45, Group Report No. court recited review, scope of the trial abuse of discretion Psychiatry quoted Advancement its discretion. court abused Proposed Advisory Notes to Committee’s Rules, F.R.D. 183 at 242: Terry qualify as II. Hess’ sessions psychiatrist has a Among physicians, the privileged communications. confidentiality. maintain special need to enough that Weisbeek seeks It is not com- capacity help his His of those who have revealed their the names upon willingness pletely dependent their thoughts, personal innermost he also desires freely. it ability to talk This makes privilege by requesting to further violate the impossible him to func- if not difficult thoughts personal the innermost being able to assure his tion without counselor, Terry. divulged to his own Tom and, indeed, confidentiality privi- tients of complied, issuing the follow The trial court may there leged communication. Where order, pertinent part: which stated ..., exceptions general to this rule ORDERED, agreement that confidentiali- that Plaintiffs Motion

there is wide psychi- Compel grant of Documents is ty qua non for successful Production sine relationship may ed, following understandings atric treatment. priest-peni- stipulations: to that of the ... well be likened lawyer-client. Psychiatrists tent or the 3. That it is the Court’s determinations very depths of their only explore the Terry by Dr. Hess to Tom that contacts conscious, their unconscious patients’ but and that Plaintiffs coun- are discoverable Therapeutic feelings and attitudes well. Terry, deposition take the of Tom sel going beyond a necessitates effectiveness Norman, pursuant to notice to Robert Van and, patient’s awareness in order to do Hess; Dr. counsel for this, possible to communicate it must be may inquire of for the Plaintiff Counsel secrecy freely. A threat to blocks success- Terry regarding the content of the Tom ful treatment. Terry, Tom between Dr. Hess and visits to, including limited the discussions Although the but not Zuniga, 714 F.2d at 638. Sixth Cindy It further Appeals permit use Weisbeek. Circuit Court of did facts, has not deter- understood that the Court privilege under its the court did are ad- mined whether these discussions privilege must be hold that the Principles missible trial. Such determination shall Ethical Psychologists, publish- at a later date. be made Psychological ed the American Associa- (APA), tion a scientific professional soci- Terry may Weisbeck believes that have coun- ety psychologists. At psycholo- the time Cindy Hess about selled and that Hess gist began Cindy, stop dating profession- should her because of the APA ethical colleagues code warned its Gleaning herein, al ethics. the record it is against exploiting dependency trust and apparent hopeful is also Weisbeck against sexual intimacies with sessions, clients. How- Terry, via the has knowl- ever, the ethical code express contained no edge allegedly of other women who Hess prohibition on sexual contact psy- between Regardless victimized. of what was revealed chologists is, patients. long during counseling, again, Not Weisbeck once former after Weisbeck merely complaint filed his fishing. In the same manner that a matter, the APA patient’s amended 4.07 of psychotherapist sessions with a its ethi- cal part: code to read in privileged, recognizes deemed this state right privacy between clients and social Psychologists engage do not in sexual inti- 36-26-30(2) provides: workers. SDCL macies with a therapy patient worker, years client for at

No licensed least two after certified social cessation worker, or termination of or social work associate or his services. employee may disclose information he Psychological Association, Inc., American may acquired persons have from consult- Principles Psychologists Ethical and Code ing professional capacity him in his Conduct 9 necessary was to him enable to render pre-amendment Hess asserts that his rela- professional capacity services in his to tionship began 20 months after cessation persons except: those his therapy services. From her n n n n n n employment with Hess her with Hess to Hess, her relationship Cindy That licensed certified social intimate with work-

er, worker, maintained licensed social or licensed continuous contact with Hess. alleged, certainly social work associate shall not As has be re- been this created quired opportunity exploit Cindy’s treat as confidential a commu- much for Hess to contemplation dependency. nication that trust and reveals the It also established appearance impropriety. Although of a crime or a harmful act. Hess’ certainly can actions be defined as unethical argues Weisbeck that Hess’ “romantic” re- now, neither APA rules nor our statutes lationship Cindy, began during with relationship Cindy forbade his with in 1989. patient-client according sessions to Weis- Hence, engaging relationship in a sexual beck, act, and, therefore, was a harmful departure a former does constitute a Hess’ discussions with his social worker re- good accepted psychiatric practice from garding relationship this other rela- specifically recognized but was not as a tionships with former fall within the by pre-1989 act standards set out harmful 36-26-30(2) exception. There are no South profession legislature. Hess’ or our addressing Dakota statutes or cases whether Hence, compliance he was with the psychotherapist’s sexual involvement with a applicable “law” at the time. harmful, patient constitutes a tor- former (After 36-26-30(2) tious, Furthermore, or even criminal act. tort this does not filed, Leg- require Terry action had been the South Dakota to treat information concern islature, ing contemplation enacted set of statutes of a harmful act as criminalizing pen- Terry required sexual contact or sexual confidential* Neither was information, psychotherapist assuming etration between a and cur- reveal such Hess even patients.) guidance, rent For Fur we turn to the discussed acts” with him. “harmful * footnote) writing discourage freely permits This author's does not social to this social workers to revealing Despite workers from the truth. report the harmful acts or crimes of their writing, concerns of Chief Justice Miller’s opinion (particularly tients. corresponding sentence 1989, twenty after

thermore, scope of until months she we the trial March find being patient. his Hess acknowl- because called had ceased overly broad it court’s order edges sexual with Weis- virtually all communications that he had relations disclosure of worker-, con- just beck’s in “late 1989.”1 Weisbeek social wife between and his seeing at alleged “harmful tends that Hess was his wife least acts.” year early as and four as October one client, Recall, privilege lies with treatment Hess. Weis- months after Its is determined not the counselor. allegations beck’s action revolves around tort protected by by balancing the interests duty psycholo- his breached sought shielding the with those information gist forming Zuniga, by disclosure. interests advanced wife, a Weisbeck’s Scull, 639-40; Cal.Rptr. F.2d at compel to a motion filed response It is not our intention validate Hess’ be; rather, Weisbeek, actions, may trial whatever court ordered sanctity protect of all communications between Hess his Court seeks such, worker, ruling Terry. Psychologist trial Tom privilege. As court’s social order, against claiming clearly appeals reason and evidence and Hess was Cody v. his social an abuse of discretion. Edward all of discussions with was Co., (S.D. N.W.2d worker fall within the set out in D. Jones & provides This SDCL 36-26-30. statute part: relevant Reversed. worker, No certified licensed social worker, or social work associate or his MILLER, SABERS, J., C.J., concur employee may disclose information he part part. in result in and concur acquired persons consult- AMUNDSON, JJ., dissent. WUEST professional capacity him in his necessary him enable to render KONENKAMP, J., having been professional capacity in his services at the time case member Court except: persons those submitted, participate. did not MILLER, (concurring in Chief Justice (2) That a licensed certified social work- n part). concurring in result part and worker, er, social licensed licensed I concur Justice Henderson as be re- social work associate shall not I and concur in result as to II. Issue Issue quired to treat as a commu- confidential contemplation nication that reveals the proper interpre- crux of II Issue of a crime or a harmful act[.] 36-26-30(2). depart I tation “of SDCL from opinion, Henderson’s because I be- Justice counters 36-26-30. Weisbeek that statutory provision that this lieve allows relationship Hess’s sexual with his former discovery regarding some narrow communi- wife, patient, Weisbeck’s constituted a between and his social cations Hess worker. “harmful act.” He that therefore claims psychologist’s his discussions with social wife, Cindy, In November Weisbeek’s relationship worker and began counseling In with Hess. June relationships patients other fall former began other she treatment with counselors 36-26-30(2) exception within the SDCL reportedly clinic and did Hess’s not receive privilege. any professional from after arguments by Analysis presented 1987. Hess maintains he did not June begin relationship parties reveals two his with Weisbeck’s wife subissues. first began acknowledges seeing pull that he Weis- him These statements chest closer. they suggest beck’s wife March gaged en- wife had that Hess Weisbeck’s in sexual intercourse "late 1989." physical relationship early as March Statements in a March 1989 letter from Hess to they engage even did not intercourse if in sexual "snug- wife Weisbeck’s Weisbeck’s refer to wife until late 1989. gling" grabbing in Hess's arms and the hair on psychologist is whether patient’s Hess’s tiff discharge, psychiatrist en patient with a former constitutes a “harmful personal tered into a relationship with the act” within meaning of SDCL 36-26- plaintiff in alcohol, drank smoked 30(2). act, If it is a harmful then the second marijuana and had several sexual encounters. subissue is the permitted Id. by a statute which allows disclosure of “a The New York trial court noted absence communication that contempla- reveals the any explicit statutory cause of action aris tion of a crime or a harmful act.” ing out of sexual psychia contact between a Henderson, As noted Justice there are trist patient. and former Id. at 448. Nev no South Dakota cases or statutes which ertheless, the court concluded that such be address liability whether criminal or civil havior was actionable. Id. The court rested imposed a psychotherapist who its decision on the facts of the case and on an engages in sexual relations with a expert opinion indicating former “engaging in a patient. argues Justice Henderson therefore sexual relationship with a current or former Hess’s sexual involvement patient departure good is a accept patient with a former is not a harmful act psychiatric practice.” ed Id. at 447-48. 36-26-30(2). However, under SDCL I be- opinion, the court’s the cause of action was argument lieve the better is that such contact analogous to a claim malpractice for medical purposes constitutes a harmful act for based on the seduction of a Id. at privilege statute. Goomar, 448-49. See also Stevenson v. A.D.2d (N.Y.App.Div.1989), N.Y.S.2d Although South Dakota spoken has not denied, t. N.Y.2d issue, some states have considered the cer (N.Y.1989) N.Y.S.2d 549 N.E.2d 480 question liability of civil for sexual contact (“Sexual exploitation of a during or professionals between mental health care treatment, even after a course of the harmful patients. Both California and Minne- effects of which are recognized now well sota have created a money cause of action for unanimously condemned within the damages against psychotherapists who en- professions, health is a clear violation of the gage in sexual contact with former duty physician care owes a years within following two the termination of and, thus, malpractice constitutes if even the therapy. (1992); § Minn.Stat. 148A.02 Cal. sexual conduct was not itself (West 1993). done under the Civ.Code 43.93 treatment.”) (citations omitted). guise of express Even the absence of an statuto Considerations of responsibili- ry imposition of liability, criminal or civil ty are also relevant to a determination persuasive of authority there is proposi for the what constitutes “harmful act.” The Amer- tion that psycho sexual contact between a (APA), Psychological ican Association a sci- therapist patient and former ais harmful professional society psycholo- entific and of act. Hospital Noto St. Vincent’s gists, publishes Principles Psy- Ethical York, Medical Center New 142 Misc.2d of of chologists and Code Conduct. At the time 537 N.Y.S.2d 446 (N.Y.Sup.Ct.1988), of psychologist began relationship Hess with aff'd, 160 A.D.2d 559 N.Y.S.2d 510 wife, Weisbeck’s Principles Ethical denied, (N.Y.App.Div.1990), cert. 76 N.Y.2d of Psychologists part: stated in relevant (N.Y. 564 N.Y.S.2d 565 N.E.2d 1269 1990), a New York Psychologists trial court considered continually cognizant are of patient whether sexual relations with a after potentially their own needs and of their professional termination of a psychiatric position rela influential persons vis-a-vis such tionship give malprac clients, could rise to a medical students and subordinates. plaintiff patient tice action. The They had been exploiting depen- avoid trust under psychiatrist the care of the dency persons. while re of Psychologists such ceiving inpatient depression, treatment every make effort to avoid dual relation- drug dependency and alcohol ships impair professional “seductive that could their behavior.” psychiatrist judgment Id. at 447. The exploita- then or increase the risk of rotated plain to another unit. Id. After Examples relationships tion. of such dual possibility post- of a

include, to, gesting inviting or research are not limited but students, employees, or romantic and treatment termination sexual with supervisees, patient friends or relatives.' or client. close with unethi- with intimacies clients Sexual Inc., Association, Psychological American exploit do then- Psychologists cal.... Principles Psychologists and Code Ethical clients, relationships su- Importantly, Conduct 9 students, research pervisees, employees, or Principles that indicate amended Ethical Psy- sexually or otherwise. participants pa- therapy with a former sexual intimacies engage in chologists not condone or do “frequently harmful to tient or client are Sexual harassment sexual harassment. Princi- patient or Id. The Ethical client.” n repeated com- defined as deliberate under- ples also state that “such intimacies ments, physical gestures, or contacts pro- public psychology in the mine confidence that are sexual nature unwanted thereby public’s use of fession and deter the recipient. statements, set needed services.” Id. These Association, Inc., Psychological American by professional psychol- forth association Principles Psychologists Ethical finding weigh heavily in of a ogists, favor Gorlin, Pro- (reprinted in Rena A. Codes of patient that sexual contact with former (2nd Responsibility ed. 252-58 fessional purposes act” constitutes a “harmful In December after Weisbeck limiting privilege. complaint but issuance of had filed his before Although Henderson stresses Justice order, the APA court’s pro- expressly APA ethical code did not code amended its ethical to read: relationships hibit sexual with former Thera- 4.07 Sexual Intimacies with Former at the his relation- tients time framed (a) en- py Psychologists do not Patients wife, I ship with Weisbeck’s believe gage in with a former sexual intimacies put on notice ethical code as it existed therapy patient or client for at least two intimacy psychologist that sexual between a pro- years cessation or termination of after n improper. The ethical services, (b) inti- Because sexual fessional provisions place time instructed therapy macies a former relationships psychologists to avoid “dual frequently harmful client are so impair professional judgment could their client, intima- patient or and because such exploitation.” Ameri- or increase the risk of public cies confidence undermine Inc., Association, Ethical Psychological can thereby psychology profession and deter (1989) (reprinted Principles Psychologists services, psy- public’s use of needed Gorlin, A. in Rena Codes of Professional chologists engage intima- do (1990)). Responsibility 252 The ethical code therapy patients cies provided, “Examples dual further of such two-year after a interval ex- clients even to, include, relationships but are not limited cept in the most unusual circumstances. employees, research with and treatment of engages in such ac- who students, rela- supervisees, close friends or years tivity following cessa- after the two added). (emphasis Id. The code add- tives.” bears tion or termination treatment the ed, intimacies with clients are unethi- “Sexual demonstrating there burden has ap- Arguably, cal.” Id. this last statement exploitation, light no of all relevant been clients, they all or were plied to whether not (1) factors, including the amount time currently receiving treatment. terminated, has passed therapy since Furthermore, alleged sex- (2) the fact the therapy, the nature and duration of the (3) (4) place conduct before the amendment termination, ual took the circumstances of APA not deter- code should affect our history, patient’s client’s personal the (5) mination conduct a harmful act. that such is patient’s or client’s current mental guid- status, turn to APA ethical code for impact We the likelihood of adverse ance, to others, pronouncements patient definitive on the or client and harmful under our what is or is not a act or actions made statements strong sug- therapist during therapy privilege social worker statute. course of language indicating which the amended APA ethi- worker an intent a to form sexual relationship contact patient cal code denounces sexual between with a current would be patient persua- psychologist and former is discoverable. See SDCL 36-26-30 and contrast, authority psycholo- sive for the that such conclusion SDCL 22-22-28. act, regardless gist’s contact harmful of wheth- is a communications to a social worker place if privileged er that contact took or after the before would indicated in- amendment to the APA code. tent form to the same sexual patient days with a terminating few after disagree I also with Justice Henderson’s sessions 36-26-30(2), interpretation of SDCL because above, discourage it For the reasons I would social workers from com- discussed con- psycholo- ing expose unscrupulous psycho- clude that sexual contact forward to between gist vulnerable, patient and a former therapists prey constitutes a who former patients. minimum, meaning “harmful act” within the excep- I SDCL At believe the 36-26-30(2).2 then, question, The next privilege tion to social worker should exception to worker profession- enable social report social workers to privilege. The regarding psychotherapist al allowed disclosure associations virtually psy- all poses communications between who a threat of to former harm chologist Hess and his social I am worker. tients. Justice Henderson concludes that expansive ruling convinced that this was im- sexual contact between a proper. former a harmful act and that communications such behavior fall statutory exception 36-26- SDCL protections within the of the social worker 30(2) states: view, privilege. a social Under worker worker, That a licensed certified social privilege by report- would violate the statute worker, licensed social social licensed ing who, psychotherapist during a counsel- required work associate shall not be session, plans discloses become treat as confidential a communication that sexually patients; involved with former contemplation reveals of a crime or a privilege attach would to these disclosures harmful act[.] regardless intimacy howof detrimental such There is no South Dakota law inter- case patients would be to the former preting proper scope exception profession. psychotherapy 36-26-30(2). Likewise, contained Justice Henderson also underscores the jurisdictions helpful cases other provisions South Dakota Code which crimi- disappointingly sparse, largely due to the psychothera- nalize contact between privilege individualized nature statutes current, former,

pists patients. but not However, persuasive other states. there is This observation does not decide the issue authority exception to the indicates exception us. The before social work- privilege encompasses only communications privilege encompasses contemplation er aof regarding future crimes or harmful future crime or harmful act. The absence aof statutory exception acts. New York has a criminal statute does not resolve whether privilege which essential- psychotherapist sexual contact between a ly version. identical the South Dakota a former a harmful act. constitutes exception provides: “[T]hat This a certified Finally, required notion that sexual contact with social worker shall not be to treat harmful aby is not a act as confidential a communication client purposes contemplation of the social worker of a crime or could reveals arbitrary act.” & lead to results. Under the South harmful N.Y.Civ.Prac.L. R. 1992). 4508(a)(2) (McKinney § criminalizing According to Dakota statutes contact commentary psychologist patient, practice following current the this stat- between a and a ute, exception privilege psychologist’s to a social this means that “no a communications 36-26-30(2). opinion It does determine 2. This decides the issue of whether engaged conduct sexual contact between a and a for- whether tortious liability civil would attach. mer constitutes a “harmful act" under 372 leged contemplation the a within client’s revelation of applies to the statute. future subject compulsory & R. and are disclosure.” N.Y.Civ.Prac.L.

crime or harmful act.” (citing Community 4508(a)(2) (McKinney at commentary at Id. 403 N.Y.S.2d 386 § 15 added). 1992) Inspector Society This on limitation v. General (emphasis Service Welfare 383, York, ex- 398 “parallels judge-made New 91 Misc.2d privilege State People v. privilege.” (N.Y.Sup.Ct.1977); Id. ception attorney-client N.Y.S.2d 92 to the Brooks, 928, 319, 929 A.D.2d 376 N.Y.S.2d 50 interpre narrow, similarly intent-driven other (N.Y.App.Div.1975), reversed on Bass, People v. tation was endorsed 792, 866, grounds, 42 N.Y.2d 397 N.Y.S.2d (N.Y.Sup.Ct. 529 N.Y.S.2d Misc.2d (N.Y.1977)). 366 N.E.2d 879 Bass, Supreme New York In statements to an absence Court noted taking a more rationale for court’s indicating defendant the social worker exception expansive “harmful view of the act” would, would, continue sexual feared he doc- inapplicable to case. Neither the activity Id. daughter. 529 N.Y.S.2d with patriae tradi- parens trine of nor court’s held that defen at 963. The court therefore tional on the interests of the child focus best worker, limit social dant’s statements to the discovery in justify broad a can be invoked that he had ed as were admissions revolving psychologist’s rela- case around a activity daughter engaged with his in sexual tionship adult past, statutory in the did fall within the New Although Justice cites another Wuest revealing exception for communications “state- proposition York for the case contemplation a harmful act. of crime or Id. indicating ments made to a social worker (disagreed on other at 963 N.Y.S.2d privileged,” sum- possible fraud were not Gearhart, People v. Misc.2d grounds, mary holding the case. misconstrues the (N.Y.Crim.Ct.1990) 560 N.Y.S.2d O’Gorman, In New York v. Misc.2d physicians report requirement (statutory (N.Y.Sup.Ct.1977), de- 398 N.Y.S.2d suspends application physi child abuse in- misrepresented ownership their fendants judicial proceed cian-patient privilege in all property in terest in real order to receive ings involving neglect)). child abuse payments. misrepresenta- These welfare support In ordered broad tions were made certified social workers court, by several the trial Justice Wuest cites administering program. Id. 398 welfare However, York cases. these earlier New charged being After N.Y.S.2d at 337-38. clearly distinguishable from cases are larceny grand conceal- and deliberate Perry v. Fiuma case before this Court. ment, argued that these fraudu- defendants no, 403 N.Y.S.2d A.D.2d privileged un- misrepresentations lent were mother (N.Y.App.Div.1978), divorced der R. the statute N.Y.Civ.Prac.L. & child, sought custody alleging that the her establishing privilege for communications emotionally custodial father was unstable. O’Gorman, 398 to certified social workers. sought psycho of father’s Mother disclosure rejected at court defen- N.Y.S.2d 338. The logical held center records interpretation, citing general dants’ rule the center. and a certified social worker at “personal that a never be confidence can alleged Id. records were Father in itself used cover transaction which is the doctrine privileged. Id. The court noted (quoting crime.” Id. 398 at 338 N.Y.S.2d judicial parens patriae trend to Farmer, New York N.Y. 87 N.E. privilege cases carve out limitation (N.Y.1909)). 457, 464 best interests of involving the welfare and holding is irrelevant to children. Id. 403 N.Y.S.2d 385. Conse O’Gorman disposition quently, interpreting the “harmful act” of this case. There no exception indication that to his social privilege, to the social worker Hess’s statements or in a crime or an element of that “statements made worker constituted reasoned Consequently, non- given by a crime. the existence or [father] formation health, adversely upon Hess and his bearing existence of between safety privi of the infant are not social worker unaffected O’Gorman. and welfare adopt Dakota could a broader inter- crime or a act.” South harmful v. Massachusetts Collett, 424, New York pretation 1223, its statute than the 387 Mass. 439 N.E.2d (1982) Arguably, have (citing 112, authorities favored. n. 1 Mass.Gen.Laws ch. “contemplation 135(b) (revised 1989)) added).3 phrase of a crime or a harm- § (emphasis merely beyond ful could extend future act” Legislature Because the South Dakota did plans example, entry one or intentions. For employ broad language enacting such Third New International Dictio- Webster’s 36-26-30(2), the discovery extensive (16th 1971) Unabridged nary, ed. defines court, extending allowed es- contemplation as “an act of mind in con- sentially exchanges all between Hess his sidering with attention: attention continued worker, improper. social The trial court MEDITATION, subject: particular to a discovery should limited to communica- MUSING, sup- STUDY.” This definition indicating tions to his social worker ports interpretation a broad 36-26- of SDCL a future intent to initiate or continue sexual 30(2) discovery virtually and would allow relationships his former or current concerning to a social statement worker regard, disagree tients. In this I with both contrast, or harmful act. In another crime approach the “all” of Justice Wuest and entry dictionary in the same “con- defines “nothing” approach of Justice Henderson. templation” looking “the as act of forward to considering intending an event: act of or Finally, dissent procedural raises a a future event: Web- EXPECTATION.” issue which should be addressed. The dis Dictionary, Third New International ster’s sent endorses trial court’s decision (16th Unabridged 491 ed. This defini- discovery allow broad and then determine tion coincides the view that state- privilege later date whether the renders intimating ments a future admissi- intent are of the some or all evidence inadmissible. 36-26-30(2). ble under SDCL dissent, According to the the trial court could protective plausible then enter a spite interpretations, sealing two I order narrower, unnecessary suggest public that the better records from view is the disclosure. First, interpretation. “postponement” I approach intent-driven noted assert opinion, society’s privilege point Justice Henderson’s in- undermines the of de protecting patient’s privacy stroying Disclosing terests it. information to encouraging parties, uninhibited privi communication which is later determined to be psychotherapists compelling. leged, purpose far- privilege frustrates cases, reaching exception privi- to the social worker statute. In future judge where the lege severely would threaten these interests. uncertain fall whether communications Second, 36-26-30(2), if legislature exception intended a had within the at SDCL exception privi- hearing proper proce broad the social worker an “in camera is the lege, unambiguous judge it could have used lan- dure to allow the determine whether showing example, guage applies that intent. For or privilege not the to communica Collett, excep- Rules of Evidence Idaho carve out tions made to social worker.” aff'd, the social for com- Mass.App.Ct. tion to 439 N.E.2d at (1983), denied, contemplation that reveal munications “the 455 N.E.2d cert. of a

or execution crime or harmful act.” Mass. 459 N.E.2d 824 “The added). § (emphasis judge phrase questions Idaho R.Evid. should Similarly, statute al- as to limit the social Massachusetts worker so work discovery likely of communications that re- er’s to information fall lowed disclosures contemplation exception.” veal “the of a within Id. at 1232. Third commission "contemplation Wuest's dissent Justice cites two Massachusetts tions that reveal or commission Berrio, cases, Massachusetts v. 407 Mass. of a crime harmful act.” ch. Mass.Gen.Laws N.E.2d Collett, Massachusetts 135(b). Because of the different and 387 Mass. 439 N.E.2d statute, language in the broader Massachusetts (1982), support of the trial broad dis- court's precedential interpret- value of these cases in covery order. with the Both of these cases deal ques- South Dakota the narrower statute is interpretation statute, pre-1989 Massachusetts tionable. which allowed of communica- in In October 1988. March parties their attor MPCC and persons, such as lengthy letter from during discovered present this de Weisbeck neys, “should not expressed his strong Cindy, to wherein Hess a likeli Hess because there is termination Cindy, lifelong for and commitment to information love the disclosed hood that some of part: stating in exception an and will will come not within at privileged.” Id. 1231-32. remain get by your and we I will be side will my I through all with all of this. believe SABERS, (concurring part in and Justice happy togeth- life heart that we can a part). in in concurring result many so times that You have said er.... join in 1. I Chief Justice I Issue concur give to me and I you have so little would part in in result on Is- Miller’s concurrence you give much. All I need from have to so sue 2. you me you love me and show that is for to willing my partner. me to be love and WUEST, (dissenting). Justice many ways you even are show me There so by majority, challengers ato calls, As noted your coming Your to school now. evidentiary prove must car, matter ruling week, on my you on cookies when its discretion. that the trial court abused you in snuggle my arms ... even when mind, judicial law a in view the Because my pull the hair me closer grab chest rea- and circumstances this case could to a you.... I look forward lifetime sonably have concluded as did the teaching learning and from each other case, Additionally, ma- in I dissent. sharing experiences.... all kinds of With psychotherapist to dis- jority other, would allow years the best of our lives each against a client cuss harmful acts with his ahead of us. still worker, and allow those discussions by majority, noted both Hess As Therefore, privileged. I dissent on remain Cindy at the time this letter were married also. issue written, Hess admits he was also Cindy in sexual intercourse with had FACTS married to while she was still Weisbeck. was married his wife Plaintiff Weisbeck 1990; Cindy was divorced Weisbeck Starting in 1974. in November Cindy wife) (from was divorced his third Hess also counseling with Cindy sessions Hess.1 started began Hess 1990. Sometime Hess, al- Weisbeck was also counseled (Terry), Terry consult with Tom a social Cindy. frequently though not as as (not at licensed the time Hess con- 1987, Cindy that after June record shows him), regarding the sulted with fact MPCC, only but continued as patient. was with a former Hess involved counseling for she was billed sessions approximately eight to ten had sessions Hess In other than Hess. were with counselors Terry. with Cindy September employed to do Hess pres- During the course of work MPCC. Both Weisbeck secretarial action, requests for April until ent Weisbeck made two Cindy were MPCC Hess: Weisbeck re- discovered information from October Weisbeck “Love, lists, quested including clients in Hess’ poem signed, client tickets and concert items, Cindy private practice, well clients who were as Jim.” with these Confronted (Weis- BHSU; sought at and Weisbeck to her husband students thereupon admitted beck) Terry, with depose the social worker had told her he loved her. that Hess employment her with whom met Cindy terminated Cindy's counseling. billing conjunction deposition are MPCC seen 1. Attached Hess' counseling Clearly, for Weisbeck and records for sessions Hess’ contention that Weisbeck was Cindy. These show that Weisbeck was records patient of or MPCC is flawed. Weisbeck sessions, present either least sessions, own Hess’ was billed for all Cindy. Weis- Hess maintains that alone or admission, was told that he was Weisbeck never clinic; only patient of was not a beck patient, Cindy and that Weisbeck was Lando, hearing, Cindy. briefs and a the Herbert v. After U.S. 99 S.Ct. 1635, 1648, 115, (1979). 60 granting court order L.Ed.2d 133 entered an Weisbeck’s origins, exceptions “Whatever their stipulations. motion with certain these compel, First, every the demand for man’s evidence are not the lists would be over to client turned lightly expansively created nor Second, construed for kept the court under seal. derogation are search of the for Terry deposition, the counsel for Weisbeek Nixon, truth.” United States v. 418 U.S. “regarding of inquiry could make the content 683, 3108, 710, 3090, 94 S.Ct. 41 L.Ed.2d Terry], the includ- [Hess visits between (1974). 1039, Further, 1065 court this has to, regard- but not limited discussions that, objection “It ground noted is not ing [Cindy].” The court concluded its order testimony that the will be inadmissible at the stating, “It is further understood that testimony trial if sought appears reason- Court has dis- not determined whether these ably discovery calculated lead to the of cussions are trial. deter- admissible Such Carr, admissible evidence.” v. Williams 84 mination shall made at a later date.”2 It 102, 104, 774, (1969) S.D. 167 775 N.W.2d was from this order that Hess took an inter- (noting the similarities South between Dako- appeal. mediate Procedure, ta and Federal Rules of Civil quoting present the forerunner to our rule STANDARD OF REVIEW 6—26(b)). SDCL 15— scope discovery, In regard to the of Evidentiary rulings are re court has stated: viewed under an abuse of discretion stan is, scope pretrial discovery Milwaukee, Chicago, v. dard. Zens St. Paul part, broadly v. most construed. Bean Co., 155, and Pac. R.R. 479 159 N.W.2d Best, 462, 80 76 S.D. N.W.2d 565 (citations (S.D.1991) omitted). See State v. 6—26(b)provides, may SDCL “Parties 15— (S.D. 298, Christopherson, 482 300 N.W.2d matter, discovery regarding obtain 1992). Similarly, we have held that under subject privileged, which relevant to the procedure, the rules of criminal “the extent pending matter involved action....” discovery permitted by either side rests in discovery A broad rules construction the discretion of the court.” v. State Catch satisfy necessary the three distinct (S.D.1984) Bear, 640, 352 N.W.2d 644 (1) purposes discovery: narrow is- (citations omitted). majori- As noted (2) sues; trial; obtain evidence for use at ty, regarding discovery a trial court’s orders may secure information that lead to by applying of discre- reviewed the abuse admissible evidence at trial. Ringhausen, tion standard. See Aberle v. Kaarup v. Fire Ins. St. Paul and Marine (S.D.1992) 179, (applying 494 182-83 N.W.2d Co., (S.D.1989) (citing 19 8 N.W.2d an abuse of discretion to review of standard Wright Miller, ChaRles A. & Arthur R. regarding discovery); trial orders court’s Federal William Ins. Pierre v. Bear Butte Farms Praotioe Prooedure (1970)). (S.D.1986) has noted This court that the Ptrshp., 392 N.W.2d “ discovery necessary has ‘ultimate and (holding it was “within trial court’s Kaarup, at 20 boundaries.’” 436 N.W.2d discovery” refuse discretion to additional (quoting Taylor, v. Hickman U.S. and that the court’s refusal to allow addition- 385, 392, discretion). 91 L.Ed. discovery S.Ct. al was not an abuse (1947)). However, Center, Puget the United Su- Blood States See also Doe Sound that, preme “[e]videntiary Court stated 117 Wash.2d 819 P.2d has order, that, discovery noting privileges litigation (reviewing are not favored[.]” hearing compel, privileged. It will If there is no 2. At the on the motion to be sealed.... there, court stated: privilege to a matter of then it is down privilege portions yet applies deciding We here what admissi- don't know if of it become ble, relevant, Terry's yet things. We status. don't know all those sorts of That is this, purpose of all nature and and the trying I don’t all I am to structure here.... discovery. way you through will find out is enough applies privilege stuff to know if may privileged It This be a communication. or not[J stay way, turn be that and it will out to statutory privilege based court to Hess claims proper “it is function 19-13-8, pertinent litiga- provides in in the control of exercise its discretion it.”); person physician who was Regional part: “The Haute Terre tion before communi- Trueblood, psychotherapist at the time N.E.2d Hosp. v. authority to claim presumed to have (Ind.1992) of re- cation (stating “the standard only on behalf of but is limited to deter- matters view tient.” abused its mining trial court whether the omitted). discretion.”) (citations This court recognized exis- previously the We have in long test utilized review has held the statutory patient-psychotherapist tence of a judicial “involving is discretion of matters 674, M.C., 675- privilege. In re 391 N.W.2d mind, judicial in view believe a ‘whether we 19-3-7). (S.D.1986) (citing Gener- 76 SDCL circumstances, rea- could the the law and without ally, physician-patient privilege of the sonably that conclusion.’” have reached rather, basis; it “is created a common law 180, 185, Coil, 143 N.W.2d

Myron 82 S.D. v. by rule.” or court and controlled statute added) (1966) 738, (quoting (emphasis 740 367, Madison, 376 v. 374 N.W.2d Wheeldon Bushnell, Slagle F.M. & Co. v. 70 S.D. (S.D.1985) (citing 2 Evidence Weinstein’s (1944)). In 16 916 See re N.W.2d Wheeldon, (1982)). at 504-8 In 504[01] Jacobsen, Guardianship 482 N.W.2d ch. of this noted the rules found in SDCL (S.D.1992); Christopherson, N.W.2d 19-13 on Hess relies this case. which at 300. Wheeldon, majority to cite opinion fails rule “The

wherein we stated: intent of Only is clear. communica- ‘confidential ISSUE /: DID THE LOWER COURT physician patient a and his tions’ between IN OR- ITS DISCRETION ABUSE protected the statute.” are under TO PRODUCE HIS DERING HESS added) (citing (emphasis at 376 N.W.2d CLIENT LISTS? 19-13-7; 19-13-6(4); holding SDCL SDCL request seeking response to Weisbeck’s any physician not that where a was asked lists, pro- the Hess’ client Hess claims that of the information related to treatment statutory by these barred duction of lists is tient, testimony privileged). not was ini- privilege. Hess psychotherapist-patient Here, requested by the client Weis- lists 19-13-7, tially provides: cites SDCL any of beck are not related to treatment of patient to dis- The client names are not “confi A has refuse clients. under rules con prevent person close other from dential communications” thus, 19-13; eh. informa disclosing communications tained in SDCL confidential diagnosis privileged treat- purpose made of or tion not be discovered. holding physical, This ment his mental or emotional rule is accordance our that, concerning condition, drug or addic- facts the existence including “[t]he alcohol tion, himself, psycho- lawyer-client relationship privileged among physician or Bear, 352 persons participat- evidence.” Catch The N.W.2d therapist, and who are (citing diagnosis or under the treatment McCormick’s Handbook (2d 1972)). ed. See physician psychothera- or direction of Law of Evidence Canter, N.J.Super. patient’s Rosegay pist, including of the members “[tjhere (1982) that, (stating family.3 A.2d 611-12 if not to be nication is "confidential” intended 3. A related statute defines number of terms pro- except persons, persons pres- found in SDCL 19-13-7. 19-13-6 third disclosed to vides: patient ent to further consultation, interest 19-13-11, §§ inclu- examination, interview, As 19-13-6 used in per- or sive: reasonably necessary for the transmission sons (1) "patient" person is a who consults or is A communication, persons who are or physician or or examined interviewed diagnosis participating in treatment psychotherapist.... "psychotherapist" physician psycho- under the direction of the (b) person or certified as a is ... licensed patient's therapist, including members of the psychologist nation, the laws of state or under family. similarly engaged. A commu- while pa patient-physician privi no rational basis to conclude that the did fall within the lege); superior tient-psychologist privilege would be Entian v. Provident Mut. Ins. Life Co. Philadelphia, 155 Misc. attorney-client privilege].”). [to (N.Y.Cty.Ct.1935) N.Y.S. (holding directly Other courts that faced the testimony physician of a that a certain question of identities individual him privi consulted with was not support would this rationale. This is borne leged). authorities, secondary as out well as case Similarly, the Sixth Circuit Ap- Court of jurisdictions. from other It law has been peals has considered the nature and that, physician testify “A is free to stated a psychotherapist-patient privilege. In re employment being the fact of con- (6th Zuniga, Cir.1983). 714 F.2d 632 Al- by, on, of, sulted attendance treatment though majority, cited sup- this case patient, that the certain fact ports the patient’s rule that disclosure ill, place treatment, and duration identity does not confidentiality. violate visits, the number and dates of his and simi- that, appropriate stated scope “the aof (1957). § facts.” lar 97 C.J.S. Witnesses 295 privilege, like propriety privilege the of the authority privileges Another notes: itself, is by balancing determined the inter- conclusions, diagnoses, A doctor’s and protected by shielding ests the evidence usually by treatments are covered the sought with by those advanced [interests] privilege, though may even not them- disclosure.” 714 at 639-40. F.2d After bal- patient selves reveal communications. The ancing interests, these the court concluded: patients rationale for this is that result The psychothera- essential of the element therapy avoid treatment if or not pist-patient privilege is its assurance to the guaranteed confidentiality. privilege patient thoughts may that his innermost be not, however, does shield disclosure from revealed without fear of disclosure. Mere patient the that the received treatment fact patient’s identity disclosure does not of and the dates such treatment. Thus, negate this element. the Court con- TayloR, 2 Soott N. Robert K. Stone & that, rule, general cludes identity as a Privileges (2d 1993) 7.13 ed. Testimonial of a or fact and time of his added). (emphasis Lady See v. Our Gechoff treatment does not fall within the 1060, Victory Hosp., 190 A.D.2d 593 psychotherapist-patient privilege. (con 682, (N.Y.App.Div.1993) N.Y.S.2d 683 added). (emphasis Id. 640 cluding identity “that the disclosure places privi- Hess additional reliance for a nonparty not [a] witness does violate the 36-27A-38, lege pro- based on doctor-patient provided privilege” by stat vides: ute); Hosp., House v. SwedishAmerican 206 and confidential relations communica- 437, 467, Ill.App.3d 151 Ill.Dec. 564 N.E.2d psychologist tions between a licensed and a revealing 927 (“Simply pa [a] person consulting him in his itself, identity, in tient’s and of will not result capacity Nothing in are confidential. disclosure of confidential communica chapter may require as to be construed It is evident disclosure tions. that privileged those communications to be dis- physician- patient’s name does not violate the closed; may psychologist’s secretary, nor patient privilege.”); Metropolitan Jenkins stenographer or clerk examined without Co., Ins. 171 Ohio St. 173 N.E.2d Life concerning any employer the consent of his (holding patient- 125 that fact, knowledge of which he has ac- prevent physician does not testimo quired capacity. in such by ny physician fact as to the that he was date); by argues phrase, on a certain consulted “confidential Colorado, 279, 187 provides relations and Colo. P.2d communications” Wolf v. (Colo.1947)(holding prosecution heightened privilege psychologists, plac- in a for physician conspiracy ing particular against emphasis to commit on the word “rela- abortion, names, showing urges under records ad tions.” Hess South Dakota law, very of a telephone patients numbers of existence be- dresses Hampshire Supreme Similarly New protected patient is psychologist tween patient-psycho- its reasoning has held under is flawed. Court Such privilege. statute, “only therapist privilege confidential dealing statutes of other state number and communications between relations privilege con psychotherapist-patient awith psychotherapist] [psychiatrist and a or tient “confidential relations phrase, tain diag- customary necessary which are indi case is No located communications.”4 Thus, treatment, privileged. are nosis and cating place states that courts those pur- ... when not made for the observations significant distinction on different treatment, pose diagnosis are opposed “communica word “relations” M., N.H. In re privileged.” Kathleen example, Georgia Court tions.” For (1985). 379, 493 A.2d “rela Appeals no distinction between made upon cases relied “communications” its discussion Several tions” and In a patient-psycho distinguishable case at bar. the state statute on Suwanee, case, psychol sued a male therapist privilege. Annandale at Texas two women them Weatherly, Ga.App. ogist had sexual intercourse with Inc. v. who during psychotherapy at the office. That court allowed sessions S.E.2d (Tex. Abell, parts psychothera parte of a of those Ex S.W.2d plaintiffs’ interrogatories to be One of the pist’s records which were deemed had cur requested That same court to Abell the identities of “communications.” Id. specifically of dis that the addressed issue rent also touched, Stop “kissed, had covery hugged, patient of identities. National has fondled Dean, Atlanta, including any type, 190 Smoking Inc. v. sexual contact of Clinic — 256. (Ga.App.1989). 613 S.W.2d at Ga.App. intercourse[.]” 378 S.E.2d 901 sexual action, malpractice the In this and fraud The court ordered that information medical envelope sought discovery supplied names in a the court plaintiffs be sealed the attorneys. 257. persons plaintiffs’ had re Id at and addresses of all who the at comply at clinic. held ceived treatment the 378 S.E.2d Abell refused was ap contempt. psychologist’s court an order com Id. While the 901. The lower entered Legislature Texas pelling produce peal pending, clinic to was the the defendant information, brought providing inter a passed and the clinic statute the confiden locutory appeals tiality patient’s “identity, diagnosis, of eval appeal. Id. The court of that, (quot 258 “even in circumstances where uation or treatment.” Id. at n. 3 stated 2(b) § art. privileged, communications are such as with 5561h Tex.Rev.Civ.Stat.Ann. added)). (emphasis ... The Texas Su psychiatrist-patient in the of showing employment preme of Court held that the statute could evidence the fact retroactively, psychiatrist privi applied not and “that the statute or treatment identity (citing of of former leged.” Id. at 902 v. Cran forbids disclosure the Cranford Ga.App. 470, Id. at Be ford, patients/clients 170 S.E.2d 846 of Abell.” 262-63. 120 24-9-21(5)).5 (1969); § Dakota no similar statute cause South has Ann. Ga.Code concluded, pa specifically prohibiting accorded disclosure of court “that the communications, psychologists identity not psychiatrists and ... does tient’s well as position. patients’ support Id. Abell fails to Hess’ their identities.” the case extend to (1991); provides: "There § 34-26-2 GaCode Code Ariz.Rev.Stat.Ann Ann. 24-9-21(5) 5. 4. Ala § ex- are cluded on admissions and communications certain (1992); § § 32-2085 17-96-105 Ark.Code Ann. Among grounds public policy. of (West (Michie 1992); § & 2918 Cal.Bus. Prof.Code psychia- between these are: Communications 1990); (1990); § 43-39-16 Ga.Code Idaho Ann patient.” statute in effect trist and at the time National although An additional (1988); § § 74-5323 54-2314 Code KanStat.Ann decided, Smoking Stop was (1992); (1993); § 26-1-807 Mont.Code Ann. opinion, cited in was not the Ga.Code (Supp.1993); § 330-A:19 N.H.Rev.Stat.Ann. provides pertinent 43-39-16, Ann. § (West Supp. § 45-14B-28 Stat.Ann. NJ.Rev part: relations and communi- "The confidential 1992); 1993); (West N.Y.CivPracX. & psychologist cations licensed between R. § (West Supp.1993); upon placed same as those client basis Pa.Cons.Stat.Ann § (1990). attorney client[.]” provided law between 63-11-213 TennCode Ann. swings cases California the balance Hess relies two When in favor of disclo- sure, position. of his first is Smith v. support required the court is to limit the Court, Superior Cal.App.3d discoyery necessary Cal. of ‘to the extent Smith, psychologist Rptr. 145 In for a fair resolution of the lawsuit.’ was the husband in divorce action. 173 Scull, (citations omitted). Cal.Rptr. at 27 sought discovery Cal.Rptr. at 146. The wife Scull, Under the facts of the court decided husband/psychologist’s client lists for patient identities need not be dis determining purpose the husband’s closed, noting particularly seventy- period. income over seventeen-month Id. one-year-old retired who had refusing psy order disclosure charged been four criminal counts lists, chologist’s specifically client of a teenaged molestation pointed out other means available discover longer public. no threat Id. at 25- examining the husband’s income—such as Although majority cites Scull “receptionist associates position, support materially its differ regarding [husband] number readily ent facts of the case at bar reveal ordinarily customary counsels and his fees authority. that the Scull ease insufficient gross receipts showing] ... [and incon review the law indicates that the trial representa sistencies between [husband’s] ordering court did abuse its discretion past living tions income and produced lists to be to the court. Thus, expenses.” Id. at 148. the facts of judicial This court should not now rule that a way analogous in any Smith are not to those mind, in view of law and the circum presented here. ease, stances could reached upon by In a later California case relied Myron, this conclusion. at S.D. Hess, that, omitted). the court noted (citations “[i]t well-set- N.W.2d As noted tled in that the mere disclosure of order, California in its the trial court could make and patient’s identity psychother- violates the carefully provisions protect enforce apist-patient privilege.” Superior Scull privacy patients. of nonparty See Blue Cross Court, Cal.App.3d Cal.Rptr. Larson, and Blue Shield Minnesota of (citations omitted). support of (Minn.App.1991) (noting N.W.2d rule, independent this court noted the protective that the trial drafted a court order right privacy” provided in “inalienable to restricting patient identity access to informa (citing Cal.Rptr. tion). state constitution. 254 at 27 Const, § art. I We note that the

Calif. South Dakota constitution contains no similar II: DID THE ISSUE TRIAL COURT provision. The on to Scull went state: IN ABUSE ITS DISCRETION OR- THAT WORKER DERING SOCIAL

However, patient-psychotherapist TERRY BE DEPOSED? privilege is not The state a absolute. has significant facilitating in interest ‘... During deposition, Hess was asked just ascertainment of truth and the resolu- anyone he had with whether ever consulted Indeed, legal very ‘[t]he tion of claims.’ regarding it to proper whether was behavior integrity judicial system public of the and patient. date a woman that was a former system depend on full confidence responded Hess that he consulted had facts, of all within worker, disclosure the Terry, eight a social to ten occa- framework of the rules of evidence.’ Terry, sought depose sions. Weisbeck to specifically to to discover statements made right When the to disclosure clashes Terry propriety and of dat- about ethics privilege, required with a the court is to Hess patients patients. and former ‘indulge balancing’ in a careful need Terry all of claims that content his visits against for disclosure the fundamental citing privileged, are SDCL 36-26-30 which right privacy. privi- The provides pertinent part: by balancing lege is determined inter- worker, protected by shielding the evidence licensed social ests No certified social worker, sought with advanced or or his those disclosure. social work associate Further, dated a any information he never employee may disclose [Cindy] patient he has ever dated former persons from consult- acquired relationship did until 20 not start capacity that professional ing him his her terminat- counseling after his months necessary enable him render capacity to ed.” in his services li- except: ... That a persons those that con- majority fails note Hess’ worker, licensed so- social censed certified relationships with regarding his Cin- tentions woi’ker, licensed work associ- cial dy with other and other conflict as required to treat confi- not be ate shall Cindy Both the record. evidence reveals the a that communication dential April until patients of MPCC Weisbeck were contemplation a or a act crime Cindy Although harmful not been billed had 1988. [.] counseling since sessions with Hess June forty percent added). to receive urges Hess continued (Emphasis Weisbeck Cindy and Terry gross from both not all revenues visits with content of Hess’ sessions, as sole owner communications Weisbeck’s privileged, because those signs of ro- Weisbeck observed contemplation of “harm- MPCC. reveal Hess’ would Cindy and Hess mantic involvement between specifically, Hess’ romantic involve- ful act” — concert tickets during and found the Cindy, patient.6 a former ment with The March 1989 place.7 poem took October 1988. no act ever argues that harmful that, prior also indicates roman- “no evidence letter Specifically, Hess states involvement, tic and indicates Hess’ desire dating patients or is now [Hess] exists lifelong point to make a commitment past. testified he has in the has [Hess] has believe, 'special support as she had been led 6. Weisbeck submits documentation therapist's dating a current her been violated. his contention that trust has act, specifically harmful Id. at 1367. mishandling noting psychologist’s what See, phenomenon.” that, as the "transference known legislature passed al- a statute States, e.g., v. United 805 F.2d Simmons clearly though imposing retroactive criminal Cir.1986). (9th The Ninth Circuit noted 1364-66 policy liability, speak public does that, by psychia- is the term used "Transference acts are "harmful state whether such patient's psychologists to denote trists provides: acts.” SDCL 22-22-28 'general- therapist and is reaction to emotional knowingly engages in psychotherapist who feelings, thoughts projection ly applied to 22-22-7.1, contact, analyst, defined in has come to wishes onto the who and represent Simmons, ” patient’s person past.’ spouse person some from the not his and who is his who is (quoting at 1364 emotionally dependent patient contact, F.2d at the time of Stedman’s (5th Ed.1982)). Lawyers’ Dictionary felony. a Class Consent commits Medical therapist mishandles transference "When patient a the is not defense. sexually patient, a involved with and becomes provides: 22-22-29 SDCL nearly unanimous in con- medical authorities sidering knowingly engages psychotherapist in who malpractice." to 805 such conduct be penetration, act of as defined an sexual (citations omitted). 1365 The court of F.2d at 22-22-2, person spouse a who is not his with findings approval of the appeals noted with the emotionally dependent patient is and who district in Simmons: penetration act of is at the time that the committed, sexual impacts of sexual involvement with one’s felony. a commits Class Consent impacts are more severe than of counselor patient by a is not defense. major merely 'having an affair’ two rea- for part: provides pertinent 22-22-27 first, the client’s attraction is sons: because §§ and 22-22-29 used in 22-22-28 Terms transference, on the sexual contact is based ordinarily "Patient," person ... mean: a who seeks activity engaging in sexual akin to psychotherapeutic from a or obtains services feelings parent, it the a and carries with regular ongoing psychotherapist a and ba- shame, by anxiety experienced guilt and sis; (4) "Emotionally dependent,” and a condi- Second, usually client is incest victims. suffering brought by of the about the nature tion psychological all or some of the patient's of the own emotional condition or brought therapy problems him or her into by psy- provided nature of the treatment result, espe- begin a client with. As by chotherapist signifi- characterized by cially to the added stress created vulnerable ability impairment patient's with- shame, cant guilt feelings anxiety pro- and hold consent to sexual acts or contact with by nature of the relation- duced the incestuous psychotherapist psychotherapist betrayal and which the ship, that is felt and the sense of eventually knows or reason to know exists. learns that she has when client Cindy. applied The text March 1989 letter New York court has the “crime or exception indicates that at the time he was ro- harmful act” same hold that state mantically Cindy, ments made to indicating involved with Hess still a social worker counseling possible privileged. to her in related a role: fraud were not New O’Gorman, York v. 91 Misc.2d you If charge your take life now and do (N.Y.Sup.Ct.1977). N.Y.S.2d See you happiness, what need to find to do Fiumano, Perry v. 61 A.D.2d you then will have much more to so offer (N.Y.Sup.Ct.1978) N.Y.S.2d (holding kids, yourself all those and around that statements made to a social worker that you.... You have a chance now to start a health, bearing have on child’s safety put pain life hurt new privileged, and welfare are not and are sub dissapointments you. I [sic] behind know ject compulsory disclosure under easy, it won’t be but in time the old hurts exception “harmful acts” social worker replaced will fade and bewill privilege). feelings you’ve happiness always new wanted you and believed could never have. Following applicable law, review of beginning you give you This new will and under the facts and circumstances of this ability happy.... Together to be we case, I cannot find that the trial court abused your will depressions including deal with — ordering its discretion that social worker teaching happens the kids what about to Terry deposed in this matter. This court you. Together we show the will kids what deposi- could exclude from the healthy Togeth- can be like. regarding tion examination Hess’ rela- finally happiness er we will find the both of Cindy. tions other than As long. us have wanted so order, Terry’s noted the trial depo- court’s These that although statements indicate for- sition would be reviewed determine what ceased, mal sessions had parts, any, if are admissible evidence. This therapist still saiv role procedure is in accordance with a case from himself Cindy both and her Courts unani- children. Mapes Montana. State ex rel. v. District mously agree therapist’s Court, that a romantic 250 Mont. P.2d involvement with a is “harm- writing, Supreme In its the Montana Court See, e.g., ful act.” Simmons v. United allowing party depose crafted order (9th States, Cir.1986) 805 F.2d 1363 psychologist; the trial court would then cases cited therein. parts, make a determination what if deposition testimony would be admissible jurisdictions ap The courts of other evidence. The trial court could then enter a plied regarding privi statutes social worker sealing the psychologist’s order protective lege. Supreme The Massachusetts Court unnecessary public records from disclosure. a social found statements made to pre- Id. The trial court take similar could a defendant incestuous acts not cautions in this matter. privileged revealing as communications or harmful crime act. Massachusetts v. Ber

rio, (Mass. 407 Mass. 551 N.E.2d Collett, See Massachusetts (Mass.1982) 1223, 1228,

N.E.2d 387 Mass.

(holding boyfriend statements to a that he hit abused mother privileged). well as her child were not

Case Details

Case Name: Weisbeck v. Hess

Court Name: South Dakota Supreme Court

Date Published: Nov 9, 1994

Citation: 524 N.W.2d 363

Docket Number: 18509

Court Abbreviation: S.D.