In the case of Redding v. Virginia Mason Medical Center, a 1994 decision from the Washington Court of Appeals, a woman sued the hospital for emotional distress caused when it released psychotherapy records to her former husband. During their marriage and in connection with charges of domestic violence, the plaintiff’s husband entered into anger management counseling sessions ordered by the district court. The husband's doctor asked the wife to attend five of these appointments to maximize the therapy. During one of these sessions, the wife admitted that her alcohol problem contributed to her husband's anger and propensity toward violence.


    Subsequently, the wife petitioned for dissolution of the marriage and a custody battle ensued. During these proceedings the plaintiff denied that she had an alcohol problem. To prove that she did, her husband got copies of the hospital's records documenting the joint counseling sessions with his wife. The hospital released the records to the plaintiff’s husband without a subpoena or the wife's consent. The plaintiff sued the hospital, claiming emotional distress caused by a breach of the psychologist-patient privilege. The plaintiff relied on the state statute regarding this privilege. It stated that confidential communications between a client and psychologist is protected against compulsory disclosure to the same extent as confidential communications between an attorney and a client. The hospital argued that the plaintiff waived the privilege by making statements to a physician in her husband‘s presence.


    The court agreed, stating that although statements made to a psychologist in the presence of a third party remain privileged when the third party is a joint client, such statements are not considered privileged in subsequent litigation between the parties. The plaintiff’s husband in this case was therefore free to disclose the wife's communications in the subsequent controversy between them. In its opinion, the Washington Court of Appeals declined to create a broad-based rule allowing a patient access to joint counseling records at any time, upon request.


    On the other hand, caregivers can be liable for being too forthcoming with mental health records during legal proceedings. In an Illinois case, a psychiatrist was found liable for a breach of confidentiality, In the Appellate Court of Illinois decision in Renzi v. Monison, M.D., the defendant physician violated that state's Mental Health Act by voluntarily testifying about her patient‘s psychiatric condition during a child custody hearing. In this ruling, the court contrasted this kind of testimony from a treating physician with that of a psychiatrist hired by the state to examine a litigant, in a child custody hearing. When the physician is working as a consultant for the state, there is no liability when reporting his or her findings to the court. This is because there is no reasonable expectation of confidentiality.


    In Renzi v. Morrison, M.D., the plaintiff reasonably expected confidentiality because she and her therapist voluntarily entered into a relationship for therapeutic purposes. Massachusetts state law gives patients the privilege of refusing to disclose, and of preventing a witness from disclosing physician-patient communication relative to diagnosis or treatment of the patient's mental or emotional condition. There are a number of exceptions to this, however, including certain child custody cases. So confidentiality is not a simple matter. Health care providers should exercise caution when responding to a request for a patient's records from a third party involved in litigation. They should be aware of the context in which the physician-patient relationship arose. Then they can discuss it with a risk manager or attorney in relation to the laws in their state.

    Hospital Action Regarding Conflict Between Spouses

    by Attorney Frank E. Reardon

    April 1995

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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