By: John A. Houghton
In Georgia and in most jurisdictions, counsel for Plaintiffs and Defendants are entitled to seek any information ‘reasonably calculated to lead to the discovery of admissible evidence.’ This is quite a broad standard, and any injury victim seeking civil justice needs to be prepared to have their medical history examined by defense counsel. This takes place during the discovery period, which is generally the 4-6 months following the defense’s Answer to the lawsuit. Often, efforts by defense counsel to review a Plaintiff’s medical history is aimed at developing a prior history of chronic pain or a preexisting injury. The ultimate objective is to undermine Plaintiff’s presentation of damages and proximate cause evidence and muddy the water at trial for the jurors.
It is important that the Plaintiff inform his counsel of all prior medical history at the outset of the case. Surprises about prior medical conditions or procedures in a Plaintiff’s deposition are more detrimental to a Plaintiff’s case than simply admitting and embracing the fact that there was a prior similar injury. The defense has a right to most prior medical records, and it is safer to presume that they know about any previous issue. Sworn testimony that is contrary to statements made in medical records opens the door for a host of credibility problems in front of the jurors at trial. See Barone v. Law, 242 Ga. App. 102 (2000). Be up front with your attorney and allow him to do his job in sculpting the themes and theories of the case. To do so, he needs a full, truthful account of the client’s medical and claims history.
However, simply because a piece of information or a record is ‘discoverable’ does not necessarily mean that it is admissible at trial. There are specific limitations on the type of medical records that can be obtained by opposing counsel. Georgia law is clear that communications between a patient and a licensed psychiatrist (O.C.G.A. § 24-5-501(a)(5), (a)(8)), licensed psychologist (O.C.G.A. § 24-5-501(a)(6) and O.C.G.A. § 43-39-16) as well as any other recognized mental health professional (O.C.G.A. § 24-5-501(a)(7) and O.C.G.A. § 37-3-166) are privileged and immune from disclosure. See also 45 C.F.R. § 160 and 164; Jaffee v. Redmond, 116 S. Ct. 1923 (1996).
Even where a plaintiff may claim mental or psychological damages, these privileges are not waived. “Communications between a patient and a psychiatrist are absolutely privileged unless the patient affirmatively waives the privilege.” Hopson v. Kennestone Hospital, Inc., 241 Ga.App. 829 (1999), aff’d by Kennestone Hospital, Inc. v. Hopson, 273 Ga. 145 (2000). The Court of Appeals in Hopson stated:
We have discovered only one sort of case in which a waiver was found, and that is where the patient actually calls the psychiatrist at trial to testify about the patient’s mental state. [cits. omitted]. Unlike that affirmative act clearly waiving the privilege, courts have found that the privilege is not waived where a patient seeks to recover damages for mental and emotional damages, where a third party necessary for the psychiatric treatment is present during the patient’s treatment, or where the patient has made disclosures in a separate unrelated action. Id. at 831.
Always be mindful that the Plaintiff’s prior history is discoverable and the client should inform the plaintiff’s lawyer of all issues before discovery begins. Both sides are allowed to cast a very broad net with interrogatories, document requests and subpoenas. However, if such records contain any privileged communications between a mental health professional and the client, this information should be safeguarded by objections or motions for a protective order.
Every case is different, but the rules are the same. At the Houghton Law Firm, we work hard to provide every client with all the right tools to achieve civil justice. Be safe out there.