Authors: Terrence W. McCarthy & Logan T. Matthews
For a plaintiff in a civil lawsuit, there has been a longstanding debate in many jurisdictions about whether a claim asserting mental anguish damages should serve as a waiver of the psychotherapist-patient privilege or whether a defendant should be entitled to discover and introduce evidence of the plaintiff-patient’s confidential communications with a psychotherapist at trial. Although courts around the country have differing views on this issue, Alabama law is clear: filing a civil lawsuit that seeks mental anguish damages, standing alone, does not serve as a waiver of the psychotherapist-patient privilege.
The soundness of this rule is the subject of frequent debate, and there are valid arguments on both sides. On the one hand, if a defendant is not entitled to discover such evidence or introduce it at trial, a defendant may be hamstrung to dispute that its conduct was a contributing cause to the plaintiff’s alleged mental anguish. For example, suppose a plaintiff has suffered from life-long depression. In that case, it may be helpful for a defendant to know about the plaintiff’s mental health evaluations or psychotherapist treatment records which precede the lawsuit-triggering event to dispute that the defendant’s conduct was the real cause of the plaintiff’s mental anguish. On the other hand, if communications between a patient and her psychotherapist are not privileged, a patient may not have the same candor with her psychotherapist, and a psychotherapist may be unable to provide the treatment necessary to relieve a plaintiff-patient of her mental anguish. Balancing these interests is at the heart of Alabama’s law on the psychotherapist-patient privilege.
To date, Alabama courts have found that the balance between these competing interests weighs against disclosure when all that is in play is a civil plaintiff suing for mental anguish damages. But, Alabama courts have found that the balance tips in favor of disclosure in certain cases, typically where an overriding interest is at play. For example, the mental condition of a parent in a child custody dispute, a defendant’s mental state in an involuntary commitment proceeding, or when the plaintiff has waived her right to claim the privilege.
This Article discusses the background and general scope of Alabama’s psychotherapist-patient privilege. Then, it describes what the privilege does not cover. Next, the Article explains ways plaintiffs can waive the privilege. To illustrate these waiver concepts, this Article walks through five situations that may arise in a civil lawsuit and discusses how claims of psychotherapist-patient privilege might be analyzed.