The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.
In Dudley v. Jefferson Circuit Court, 2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering. Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.
The court held that the records were discoverable, saying " Appellant’s claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."
One would think that the a protective order should be issued to prevent defendants from sharing the plaintiff’s records with those who have no part in the litigation. However, I think the court did the right thing by ordering the production of the records in this case.
Practice tip: before asserting a claim of mental or emotional injury, ask your client whether they have a mental health history and help them understand that asserting a claim will likely open that history up for evaluation by the defendant. I firmly believe that rarely should a plaintiff be troubled by that because I think there are two types of people: people who have been to counseling and people who are going to go to counseling. That being said, some folks have what they believe to be deep, dark secrets that they do not want to come out no matter what the cost. If your client is one of those people, a claim of emotional injury may have to be dropped.