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Georgia Mental Health Records Are Privileged in Dental Malpractice Litigation

Many times, a claim for dental implant malpractice or root canal malpractice involving dental nerve injuries includes a claim for mental pain and anguish. Defendants in these cases typically try to obtain all of plaintiff’s medical and psychiatric records for the previous 10 years, or longer. This type of request was addressed in Brown v. Howard, 778 SE2d. 810 (Ga. App 2015). In holding that the plaintiff’s mental health records were not subject to the defendant “fishing expedition”, the Howard court reasoned as follows:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action [.]” OCGA § 9–11–26(b)(1). Georgia law provides several privileges related to mental health, which, collectively, are referred to as the “mental health privilege.” State v. Herendeen,279 Ga. 323, 325, 613 S.E.2d 647 (2005). The components of the mental health privilege include

(5) Communications between psychiatrist and patient;

(6) Communications between licensed psychologist and patient as provided in Code Section 43–39–16;

(7) Communications between a licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, or licensed professional counselor and patient; [and]

(8) Communications between or among any psychiatrist, psychologist, licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, and licensed professional counselor who are rendering psychotherapy or have rendered psychotherapy to a patient, regarding that patient’s communications which are otherwise privileged by paragraph (5), (6), or (7) of this subsection[.]

OCGA § 24–5–501(a). See also OCGA § 43–39–16(“The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”). Thus, “[a]ny information … which had its origins in communications from the patients to the [mental] health providers is privileged.”Herendeen,279 Ga. at 327, 613 S.E.2d 647(internal citations omitted).

The mental health privilege “remains inviolate even though the patient’s care and treatment or the nature or extent of the patient’s injuries are put in issue in a civil proceeding.” Cooksey v. Landry,295 Ga. 430, 432–433(2), 761 S.E.2d 61 (2014)(citations omitted). And “[t]he psychiatrist-patient privilege is not diminished by the fact that the patient sought or contemplated treatment jointly with other persons, or primarily for the benefit of another person who is in treatment by the same psychiatrist.” Mrozinski v. Pogue,205 Ga.App. 731, 733(1), 423 S.E.2d 405 (1992)(addressing family therapy); Sims v. State,251 Ga. 877, 880(5), 311 S.E.2d 161 (1984)(statements made by husband during joint psychiatric counseling with wife were privileged).

But all psychiatric records “are not absolutely privileged.” Plunkett,217 Ga.App. at 21, 456 S.E.2d 595. And nonprivileged portions of such records are subject to discovery. Aetna Cas. & Sur. Co. v. Ridgeview Institute,194 Ga.App. 805392 S.E.2d 286 (1990). For example, “[t]he privilege does not extend … to any communications made [by the patient] to nurses or attendants, unless [the nurses or attendants] were acting as agents of the attending psychiatrist [.]” Plunkett,217 Ga.App. at 21, 456 S.E.2d 595(citation omitted). Similarly, “[t]o the extent that the records in question disclose information or communications made between [a mental health professional] and persons other than [another mental health professional or his or her] agent and such communications are relevant to [the] defense, they would be discoverable under Georgia law.” Aetna Cas. & Sur. Co.,194 Ga.App. at 806(1), 392 S.E.2d 286(citation omitted). And where “no mental health treatment is given or contemplated”—for instance, when a court appoints a mental health provider to evaluate a person’s mental state as opposed to providing treatment—the mental health privilege is inapplicable. Herendeen,279 Ga. at 326, 613 S.E.2d 647. Compare In re I.M.G.,276 Ga.App. 598, 603(1), 624 S.E.2d 236 (2005)(even if a patient received treatment involuntarily, the fact that she received psychotherapist-patient treatmentmeant the mental health privilege applies). Also, drug tests required by an employer are not protected. Foster v. Swinney,263 Ga.App. 510, 512(a), 588 S.E.2d 307 (2003). Finally, “the fact of employment of or treatment by a mental health provider and the dates thereof do not fall within the mental health privilege and may be disclosed.” Herendeen,279 Ga. at 327, 613 S.E.2d 647(citations omitted); Kennestone Hosp.,273 Ga. at 148, 538 S.E.2d 742; Mincey v. Ga. Dept. of Community Affairs,308 Ga.App. 740, 746(1), 708 S.E.2d 644 (2011).

Our review of the records at issue shows, among other things, dates of service; the names of several persons whose professional status is unknown; numerous documents where, without additional information about the content of the document, we are unable to tell whether it had its origin in a communication between Howard and a mental health provider; documents that include undefined acronyms making the nature of the services rendered indecipherable; reports of a medical doctor concerning a medical diagnosis; various notices of the privacy practices of the Cobb/Douglas County Community Services Boards and consent agreements signed by Howard regarding her right to confidentiality and any exceptions thereto; statements of payment for services; indications that Howard has participated in group counseling sessions but without specifics regarding the group nature of the sessions; medical risk assessment documents; communications from Howard’s mother to CRC personnel; a letter “To Whom It May Concern” regarding the program and treatment Howard was receiving; documents reporting conversations with other non-professionals present; and indications of the results of random drug screenings.

Many of these documents, however, are obviously not relevant to the present proceedings. Nevertheless, because some of the documents may be both relevant and non-privileged, the trial court erred by concluding that all of the documents other than the produced billing documents are privileged. Plunkett,217 Ga.App. at 22, 456 S.E.2d 595. Any relevant and non-privileged documents should be produced even if redactions are necessary. This Court is unable to complete the review of the documents without additional information not available to this Court, such as, among other things, the professional status of certain individuals, whether the information in some of the documents had its origin in a communication between Howard and a mental health provider, and whether certain documents reflect treatment other than mental health treatment. Accordingly, this case is remanded to the trial court for an in camera review in conformance with this opinion, “i.e., to separate privileged versus non-privileged information and provide a redacted copy.” Id. (reversing trial court’s order determining that entire psychiatrist’s file was privileged and remanding for additional in camera review); see also Herendeen,279 Ga. at 328, 613 S.E.2d 647 (remanding case for in camera review to determine what documents were privileged).

In essence, the Howard court upholds the privilege but requires the plaintiff to provide a log of what might and might not be subject to discovery of the other side. This applies, even if the plaintiff has put her mental health at issue in the case, as is often the case in dental malpractice claims and nerve injuries.

Robert J. Fleming has been handling dental malpractice cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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