Laurence M. Deutsch and Steven E. North
Often in the case of a severe life-changing physical injury, there is a real psychological cost to cope with as well as the physical disability. Those with severe injuries often suffer from “reactive depression,” experiencing social and self-image problems.
A serious injury can change every relationship in a family. A wife may have to assume a caregiver role for her husband, or vice versa. Children may have to care for parents before they anticipated it. When this happens, counseling is often beneficial to help patients navigate the changes in their lives after serious injury. Other family members, too, may benefit from counseling in such circumstances.
In a medical malpractice case, records of injury normally must be disclosed bring with it the question of whether the attorneys defending the doctor or hospital that caused an injury are entitled to review psychological counseling records in addition to medical records for physical injury treatment. Our clients sometimes ask whether we can withhold or restrict access to these records.
Matters discussed in therapy are obviously the most sensitive. Individuals discuss their relationships, their childhoods, problems they may have had with the law, any experimentation with substance abuse and other extremely private and personal information. Their revelations are of the kind they would least likely want to share with a stranger, much less with an opposing attorney who is looking for “dirt” he or she thinks can be used to make the plaintiff in a case look less sympathetic.
The simple answer to whether psychological records can be kept out of a case is that it depends on the nature of damages alleged.
If as a plaintiff you allege a true psychological injury such as a "reactive depression" resulting from an injury, the otherwise privileged nature of your psychiatric records will be broken, and you will have to disclose these records to the other side in litigation.
This is not the same as saying that these records will be publicized to the jury during trial. The trial rules of "relevance" are stricter than the rules of document exchange during the discovery period prior to trial. If you are claiming a psychological injury, you will most likely have to exchange psychological records with opposing attorneys in the course of discovery. However, there may still be legitimate arguments to keep all, or particularly sensitive portions of such records, away from the jury if they are deemed more “prejudicial” than “probative” (meaning more likely to appeal to a juror’s emotions than tending to prove or disprove a significant fact).
This may not sound fair, but there is a general fairness underlying this rule: if the defendant has caused your injury, he or she is required to pay the full amount of damages for that injury, but we should not expect the defendant to pay for other unrelated injuries. So, for example, if the injury has caused loss of a hand, the defendant is responsible for compensation. But if the plaintiff seeks to claim that this has damaged the marital relationship, and counseling records reveal decades of marital problems, without a significant change in the pattern in the post-injury period, then it does stand to reason that this is not a real component of the damages.
Some courts have held that when an injury causes “loss of enjoyment of life," even without a specific psychological injury being claimed, mental health counseling records that may bear on their previous quality of life or mental state may indeed become discoverable to the other side. The courts are not completely consistent in requiring such disclosure, but in many cases where there is a profound life-changing injury, disclosure of counseling records may be required. (See for example: James v 1620 Westchester Ave. LLC, 2017 NY slip opinion 01303 (2/21/17).
Many find great benefit in undergoing some form of psychological counseling while their case is pending. However, we often have to counsel clients that despite our best intentions in limiting claims to only the most provable elements, they still run a risk that anything they say in a counseling session may at some point be subject to the prying eyes of opposing attorneys. A sense of having to “look over your shoulder” in what should be a completely confidential setting can, unfortunately, compromise the effectiveness of the counseling.
This situation is problematic but remains the state of the law unless or until the New York State Legislature chooses to better protect counseling confidentiality. But for the present, there are certain "take-home" lessons that may be helpful to people considering a case:
We do not routinely claim "psychological injury" when there is a clearly defined physical injury. This is to avoid even an appearance of exaggeration and may help protect some degree of confidentiality should the Plaintiff want to avail him- or herself of counseling.
Nonetheless, even when claims are properly tailored, there is an inherent risk that prior or ongoing psychological records may be disclosed to the other side in the course of litigating a severe, life-changing injury.
For most people, considerations of privacy do not determine whether they bring a case. However, navigating issues of privacy is an important issue that should be approached thoughtfully by an attorney and discussed fully with the client. We pride ourselves in helping our clients understand all aspects of their litigation and how best to navigate effects on their privacy.
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