Are my Therapy Records Protected in a Lawsuit?

This is a tricky area of personal injury law, and even experienced therapists are confused about what to do at times. Legally, both sides in a lawsuit have the right to investigate all claims that are made by the plaintiff. For the defense, they’re trying to avoid paying you, and the only way they can do that is to argue the severity of your physical and mental injuries. However, the defense’s right to information cannot override the plaintiff’s right to privacy when it comes to their mental health records.

Today, we will talk about how that balance is achieved in the California court system. Additionally, we will go over related questions that may be on your mind:

• Is my therapist legally obligated to turn over my therapy records?
• Can I decide which parts of my therapy records are turned over?
• What are my rights if my lawyer refuses to protect my mental health records?

Please keep in mind that the laws and general practices we will cover may not apply to your situation. Each lawsuit has its own set of circumstances, which you should discuss with a knowledgeable attorney. If you have questions or concerns about anything you read here today, please give us a call at our office.

California’s Law on Therapist – Patient Privilege

The protection of a patient’s therapy records are explained in California’s psychotherapist-patient privilege, Evidence Code 1014, which states:

“…the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege. (b) A person who is authorized to claim the privilege by the holder of the privilege. (c) The person who was the psychotherapist at the time of the confidential communication…”

That sounds pretty straight-forward, doesn’t it? It’s your right to refuse the release of your therapy records, and furthermore, your therapist or ex-therapist can’t turn them over without your permission. That’s why most metal health practitioners immediately decline defense motions for mental health records, citing that it’s their right to do so under the psychotherapist-patient privilege. But there’s a catch to this privilege when you file a personal injury lawsuit. To learn about exceptions to the client-therapist privilege, please keep reading.
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Garden Variety Claims versus Special Claims

As we mentioned, communications between patients and mental health providers are generally protected under California laws. But when the patient seeks monetary damages, their health – including their mental health – are called into question. Specifically, personal injury lawsuits ask for non-economic damages, like pain and suffering .This form of damage compensates a victim for emotional distress, which can be significant in traumatic accidents like fires and car crashes. But proving a case for pain and suffering may require you to disclose your therapy records.

However, you can get around this by claiming “garden variety” damages, meaning you are not asking for pain and suffering beyond what is normally expected for your type of accident. On the other hand, if you are making a “special” claim for damages, you are requesting emotional damages that are beyond the normal range for the injuries you’ve suffered. If you are asking for special damages, it’s possible that your therapy communications would need to be turned over to the defense.

But even if such records have to be turned over, your lawyer should do everything they can to limit the types of communications that the defense has access to. If they’re not taking every available measure to protect your mental health information, that’s a bad sign of their commitment to you as a client. It may also indicate their lack of knowledge regarding therapist-patient privilege, or inexperience with your type of your lawsuit. Staying with such an attorney can negatively impact the outcome of your case, so if you find yourself in this situation, please give us a call right away. There are legal actions you can take against unethical or incompetent attorneys, but you should consult a lawyer ahead of time to ensure that you’re doing the right thing.

What Counts as a Psychotherapist in California?

The state of one’s mental health may be discussed with many individuals, ranging from friends and co-workers to family doctors. This is important to note, as only “psychotherapists” are protected under Evidence Code 1014. According to the code, psychotherapists include:

• Psychiatrists
• Licensed psychologists
• School psychologists
• Marriage and family therapists
• Clinical social workers approved for non-medical psychotherapy
• Licensed clinical counselors
• Psychology interns and assistants, working under a licensed therapist’s supervision
• Social workers in training that are working under a licensed therapist’s supervision
• Registered nurses that are listed by the state board as mental health nurses

Confidential communications, like therapy records, between these professionals and their patients are protected under the laws of patient-therapist privilege. The privilege also applies to communications during group sessions that are conducted by one of the above individuals. For more information on psychotherapist-patient privilege and how it applies to your case, contact our office and speak to one of our attorneys.

What to do if your Lawyer is not Protecting your Mental Health Records

As stated in a previous section, the defense may have a right to your therapy records depending on the amount of emotional damages you are claiming. But if you’re making a “garden variety” claim for emotional distress, there should be no legitimate reason for the defense to have access to those records. That’s certainly the argument we use when we object to the defense’s request for a client’s therapy notes. But even if you’re asking for special damages, your lawyer should be fighting to limit the types of information that can be disclosed.

If your lawyer is not taking the proper steps to protect your mental health records, you have a few options. The first one is to file a complaint with the State Bar of California. This agency is responsible for investigating and taking action against lawyers that violate the codes of professional conduct. Their complaint form is available online, or you can call their hotline at 800-843-9053. While you may be reluctant to report your attorney, not protecting a client’s therapy records is a serious violation that must be investigated immediately. However, an investigation takes time, which still leaves you with an attorney that’s not protecting your rights.