Verdict - Spring 2015 - (Page 36)

> FeatUre sTory Understanding Mental Health a BY MICHaEl E. PEREZ ccording to the national institute of mental health, in 2012 there were approxi- and that we protect their privacy to the fullest promptly object to each one to the extent extent possible under Georgia law. that it seeks communications with any mental in order to better understand the privilege, let's look at two common scenarios: mately 43.7 million health provider, on the grounds that the information sought is privileged. defense counsel responds with a 6.4(B) letter and says that SCeNARIO 1 since mrs. Smith has alleged in her complaint States who suffered from a mental illness, You represent Joe Smith in a slip and fall case that she has suffered mental and emotional representing nearly 20 percent of our coun- at a grocery store. After responding to the pain and distress, she has placed her mental try's population.1 despite the prevalence of store's discovery requests, the defendant's condition at issue and such records are dis- such illnesses, stigma and discrimination lawyers serve you with copies of non-party coverable and relevant. Are they? still exist for those who seek mental health requests to 20 different medical providers that adults in the united treatment. 2 you listed as mr. Smith's healthcare provid- SCOPe OF THe PRIVILeGe Georgia legislators long ago recognized ers for the past 10 years. Between your busy in 1951, the Georgia General Assembly this problem and enacted a psychologist- trial schedule, your paralegal's impromptu enacted O.C.G.A. § 43-39-16 making com- patient privilege. "the confidential relations vacation and a death in the family, the time munications between a licensed psychologist and communications between a licensed to object to those requests goes by. the day and plaintiff privileged. 4 Since that time, the psychologist and client are placed upon the after the deadline to object, mr. Smith comes legislature has seen fit to further expand the same basis as those provided by law between to your office and says, "hey, the grocery privilege to include psychiatrists, licensed attorney and client; and nothing in this chap- store isn't going to talk to any of my doctors clinical social workers, clinical nurse special- ter shall be construed to require any such that we listed in that document is it? do you ists in psychiatric/mental health, licensed privileged communication to be disclosed."3 think it will hurt my case if they find out that marriage and family therapists and licensed As will be explained further below, the privi- i have been diagnosed with narcissistic per- professional counselors. 5 As such, Georgia lege was subsequently expanded to other sonality disorder and that i am a compulsive courts have more recently referred to the mental health practitioners. liar?" You break out into a cold sweat because privilege as the "mental health privilege."6 despite this long-standing statutory privi- had mr. Smith told you this, you surely would in 1994, the Georgia Supreme Court tack- lege, confusion still exists over the breadth have objected to any non-party requests led the scope of the mental health privilege and scope of the privilege. Yet, a basic under- that might seek such information. By failing in the case of Wiles v. Wiles. Wiles was a standing of the degree of protection that is to object, have you waived mr. Smith's mental divorce case, in which the husband sought a afforded mental health information is neces- health privilege? patient file from his wife, who was an internal sary because the clients we represent often medicine doctor, because their children saw have a history of mental health treatment. the SCeNARIO 2 the patient frequently. the physician wife treatment may be directly related to the claims You represent Jane Smith in a medical mal- and her patient opposed production, and the at issue because someone else's negligence practice case. Once again after suit is filed trial court agreed, ruling that communications has caused the emotional suffering, or it may and you respond to the hospital's discovery between a medical doctor who is treating be associated with another matter, such as a requests, the hospital serves you with copies a patient for psychiatric problems and the divorce or loss of a loved one. regardless of of non-party requests to 20 different medi- patient are privileged.7 the Supreme Court the cause of the emotional pain or stress, as cal providers that mrs. Smith listed as her upheld the trial court's decision, and the advocates for our clients, it is imperative that providers for the past 10 years (and some majority wrote that the privilege "extends we are sensitive to our clients' mental health that you never knew about). this time, you to a person authorized to practice medicine 36 Georgia Trial Lawyers Association

Table of Contents for the Digital Edition of Verdict - Spring 2015

President’s Message
GTLA on Capitol Hill
Beneath the Veneer: Sexual Assault, Lies, and Videotape
The Perils and Pitfalls of Scheduling Orders
What Counsel Should Know About the Court of Appeals
Post-Trial Motions and Appeals You Won a Jury Verdict. What’s Next?
United States District Court Judge Leigh Martin May Welcomed to the Bench
What You Need to Know About the Upcoming Amendments to the Federal Rules of Civil Procedure
Reflections from the Bench: Resolving Discovery Disputes
Understanding the Mental Health Privilege
What’s New with GTLA Members
Case Updates: What’s New?
Workers’ Comp Updates
Welcome New GTLA Members!
Index to Advertisers

Verdict - Spring 2015