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Protect clients' private health records: in employment cases, knowing how and when to release medical records keeps irrelevant information out of court and protects your client's privacy.

Article Excerpt
Among the many challenges confronting plaintifts, few are as disconcerting as releasing medical records--including those pertaining to mental health--to the defense.

Many people feel an acute sensitivity about their medical records and treatment history, which can be violated by any disclosure. The feeling of violation is increased dramatically by forced disclosure to an adversary. This concern is particularly acute in employment discrimination cases. In most personal injury cases, medical records logically are sought as directly relevant to the claims, but in employment discrimination cases, they may be tangential.

Further, the plaintiff has a prior relationship with the alleged wrongdoer and may have continuing relationships with supervisors, colleagues, and subordinates. He or she may be unwilling to share private medical information with the very employees who perpetuated the original injury. Also, the unavoidable stigma of mental health treatment may color how a judge and jury assess the plaintiff's credibility. In fact, because of that stigma, employers may choose to seek medical records during discovery.

Plaintiff lawyers have several options to counter this tactic. Arguments concerning privilege and relevance, as well as procedures for obtaining protective orders and in-camera review, can be used to defeat a discovery request, reduce its scope, or limit its exposure before trial. Although courts often will require some medical records to be produced, the lack of uniformity in the case law provides ways to limit disclosure.

Both the federal and state governments have passed antidiscrimination laws, giving plaintiffs a choice of forum. Although the typical plaintiff lawyer rarely views the protection afforded to medical records as crucial in choosing a forum, his or her choice will nonetheless decide the scope of protection.

In federal-question cases--and in cases involving claims under both federal and state law--federal courts apply the federal common law on privilege to the entire case. However, federal courts sitting in pure diversity cases, as well as state courts, apply the pertinent state privilege laws. (1)

Mental health records

Protection of mental health records varies, particularly because it is often decided by trial judges and magistrates handling discovery. Almost all courts require disclosure of mental health records when a plaintiff claims intentional infliction of emotional dismiss, asserts damages from a specific psychological symptom or condition, or plans to offer the testimony of a treating psychotherapist at trial. Where the injury is less specific, such as a "garden variety" claim for pain and suffering or generalized humiliation or distress, courts are more likely to protect the privacy of mental health records.

In Jaffee v. Redmond, the U.S. Supreme Court recognized a privilege for communications between a patient and psychotherapist (including licensed psychologists, psychiatrists, and social workers) for purposes of treatment. (2) Since then, courts have disagreed about when and how a plaintiff may waive this privilege.

Generally, theories of waiver can be divided into "broad" and "narrow" views. Most courts have adopted the broad view that a plaintiff who puts the state of his or her men tat health at issue in a case waives the psychotherapist-patient privilege. (3) But courts have not reached consensus about exactly what types of injuries and requested relief put the plaintiff's mental state at issue.

A few courts have held that even a "garden variety" claim of emotional distress damages waives the privilege. But many other courts have held that a garden-variety claim for emotional distress damages does not do so.

Garden-variety claims have been characterized as those "incidental" to, or the "simple or usual" result of, discriminatory treatment--including emotional pain and...

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