Legal Summary

Disclosure of Mental Health Records: Traps for Psychiatrists and Other Providers

BeTh anne jaCkson

Dealing with subpoenas from attorneys when your patient has filed a personal injury or other lawsuit is one of the many banes of a physician’s practice. Responding incorrectly can result in a lawsuit filed against you for wrongful disclosure, a complaint to the Pennsylvania State Medical Board, or a letter from the Office of Civil Rights, a division of the federal Department of Health and Human Services that enforces HIPAA, which may result in an investigation. The stakes are even higher when you are a psychiatrist or other mental health provider and the records being requested are covered by the psychiatrist-patient privilege (codified at 42 Pa.C.S.A §5944) (hereinafter, the “Privilege”).

Case Background. A recent Pennsylvania Superior Court decision, Tavella-Zirilli v. Ratner Companies, L.C. , solidified prior court holdings that a plaintiff must put her mental health directly at issue by asserting specific claims in order for certain portions of her mental health records to be subject to discovery. The Superior Court clarified what the Privilege does not protect: “records of the opinions, observations, diagnoses, or treatment alternatives of [a patient’s mental health] treatment providers.” Rather, the Privilege protects only the “confidential communications made and information given by the client to the psychotherapist in the course of treatment” – that is, the client’s “private thoughts.” Such private thoughts are not even subject to “in camera” review by a court unless the party seeking their disclosure establishes that the plaintiff waived the Privilege by putting her mental health directly at issue. The Pennsylvania Supreme Court recognized a limited implied waiver in a personal injury case involving a man who was hit by a commercial truck because state police released a report indicating that the man was attempting to commit suicide at the time. Because the man eventually died, and the defense could not get information regarding the deceased in any other manner, the release of his mental health records was ordered.

In Tavella-Zirilli, however, the Superior Court found that the plaintiff neither directly nor implicitly waived the Privilege by initiating a negligence lawsuit and seeking damages for pain and suffering resulting from chemical burns from a lengthy hair color treatment. General assertions of mental anguish, embarrassment, emotional distress or loss of consortium, if stated, do not waive the Privilege or put one’s mental health directly at issue.

Import. Attorneys can be insistent when they want records. Knowing what records you have to provide before you do and what documentation they must provide to you first is essential in protecting both patient privacy and your practice or facility. When psychotherapy notes are requested, they can only be released in very limited circumstances, when you have received: a HIPAA-compliant authorization signed by the patient that specifies disclosure of psycho-therapy notes (“all records” is not sufficient; further, the authorization may not be combined with an authorization for other records); a subpoena accompanied by a court order that specifies that psychotherapy notes be released; or a court order that specifies that psychotherapy notes be released. At all times, the release of records must be limited to what is authorized in the order or patient authorization: if “psychotherapy notes” are not specifically included, mental health treatment providers may provide only those records that pertain to diagnosis, treatment, or observation of a mental health condition, with any communications by the patient redacted. The release of this nonprivileged information can be made with a HIPAA-compliant authorization, a subpoena accompanied by a

court order, or a subpoena that is accompanied by either (a) evidence that the party requesting the information has informed the individual, the time for reply has elapsed, and no objections were filed, or (b) the parties have agreed to a qualified protective order. In the Tavella-Zirilli case, the Superior Court further instructed the trial court to require that the disclosure of this information be made pursuant to a protective order that restricts the use of any information outside of the personal injury action.

Conclusion. Physicians must always take care to ensure that information disclosed pursuant to a patient authorization or a court order is limited to that which is specified in the authorization or order. Moreover, a physician or other licensed professional providing mental health treatment services must take even more care to protect communications from patients because they are subject to the Privilege. State case law has made it clear that, as a general rule, a plaintiff must put their mental health directly at issue in their lawsuit in order for psychotherapy notes or similar records documenting the patient’s private thoughts to be discoverable. General assertions of mental anguish, embarrassment, emotional distress, and loss of consortium or life’s pleasures do not put the plaintiff’s mental health directly at issue and, therefore, do not result in a waiver of the psychiatrist/ psychologist-patient Privilege.

DISCLAIMER: This article is for information purposes only and does not constitute legal advice. You should contact your attorney to obtain advice with respect to your specific issue or problem.

Ms. Jackson is a shareholder in the Health Care Practice Group of Brown & Fortunato, P.C., which is headquartered in Amarillo, Texas, and serves healthcare providers nationally. She is licensed in both Pennsylvania and Texas and maintains an office in the greater Pittsburgh area. She may be reached locally at (724) 413-5414 or bjackson@bf-law.com. Her firm’s website is www.bf-law.com.

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