Privilege is a legal term that infers an exception from a particular rule or requirement. For example, attorney-client privilege refers to the fact that attorneys are not required to disclose information gained from communication with their clients. However, the concept of privilege is not limited to the law alone. Doctor-patient privilege protects information gained during the course of medical treatment from being used in court without the patient’s permission.
The purpose of these forms of privilege is to encourage people to be candid with their lawyers and doctors in order to help those professionals perform their jobs. The idea is that if a person fears legal ramifications as a result of their communications with their attorneys and physicians, that he would be less candid and potentially withhold important information. In this way privilege is meant to protect clients and patients.
However, there are times when these forms of privileged can be waived, allowing other parties access to this formerly confidential information. For example, an Illinois judge recently reviewed the circumstances under which doctor-patient privilege is waived; Flowers v. Owens, No. 09 C 2716. In examining the case facts, the judge needed to ensure that the plaintiff-patient’s rights were protected, while also considering whether maintaining the privilege put the defense at an unfair advantage.
In Flowers, the plaintiff had brought a civil rights lawsuit that accused Will County correctional officers of beating him during his stay at the Will County Jail. The Illinois complaint included allegations of the emotional distress Flowers suffered as a result of the alleged beatings. During his deposition, Flowers testified at length about the extensive mental suffering he’s sustained, including a fear of leaving his house and encountering other law enforcement officers.
While Flowers’s attorney contended that his client’s mental distress was of a “garden variety” and not above and beyond what would be normal in those circumstances, the defense is stipulating that Flowers’s symptoms are similar to those of agoraphobia, i.e., a type of panic disorder, and/or post-traumatic distress disorder. This debate is significant because if Flowers’s distress is of the garden variety, then he will likely be able to retain his right to doctor-patient privilege. However, if it is not, then the defense will be able to obtain copies of his psychotherapy records.
In analyzing waiver of privilege, the Illinois case of Santelli v. Electro-Motive, 188 F.R.D. 206 (N.D.Ill. 1999) is considered the authority. In Santelli, the court ruled that the plaintiff did not waive her privilege regarding her psychotherapist records because her emotional distress was general in nature and “garden variety emotional damage.” Santelli had limited her testimony to general claims of emotional distress, e.g., embarrassment, humiliation, anger, etc., that any “healthy, well-adjusted person would likely feel as a result of being so victimized.” Likewise, Santelli claims of emotional distress only involved a temporary disruption of the plaintiff’s normal lifestyle; had the emotional distress been so severe as to result in a significant disruption of her lifestyle, then Santelli would have waived her privilege.
However, Flowers’s testimony regarding the extent of his emotional distress goes above and beyond this “garden variety emotional damage.” Flowers testified that not only did his emotional distress manifest in terms of extreme anxiety, but that it resulted in a change in his regular habits. Therefore, while the court did not deny Flowers’s right to make a claim for emotional distress, it did waive his right to patient-psychotherapist privilege if Flowers does make these claims. In this way, the Illinois judge is ensuring that privilege is not used “as both a sword and a shield.”
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