Discovery and Physician/Patient Confidentiality

The California Constitution and the California Evidence Code establish a right of privacy which protects communications between a physician and patient.  Roe v. Sup. Ct. (1991) 229 Cal.App.3d 832, 837 (physician-patient privilege broadly construed in favor of the patient for public policy reasons).  Jones v. Sup. Ct. (1981) 119 Cal.App.3d 534, 549–550, citing Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678–679:

“A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected . . . . [¶] The individual’s right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones. The state of a person’s gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person’s bank account, the contents of his library or his membership in the NAACP. We conclude the specie of privacy here sought to be invaded falls squarely within the protected ambit, the expressed objectives of article I, section 1 [of the California Constitution].”

The purpose of the patient-physician privilege is to create a “zone of privacy . . . (1) ‘to preclude humiliation of the patient that might follow disclosure of his ailments’ and (2) to encourage the patient’s full disclosure to the physician of all information necessary for effective diagnosis and treatment of the patient.”  Id. (internal citations omitted).

The protection afforded medical information by the constitutional right to privacy is even broader than that provided by the physician-patient privilege.  Davis v. Sup. Ct. (1992) 7 Cal.App. 4th 1008, 1013.  Heda v. Sup. Ct. (1990) 225 Cal.App.3d 525, 528.  Thus, generally, private materials like medical records are not discoverable.  “Fishing expeditions” through private materials are not allowed.  Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387:

While the filing of the lawsuit by petitioner may be something like issuing a fishing license for discovery, as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information. Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery.

Granted, the constitutional protection is not absolute for parties engaged in litigation, but a plaintiff’s protected documents do not become open season just because they file a lawsuit.  Lantz v. Sup. Ct. (1994) 28 Cal.App.4th 1839, 1853–1854.  California Code of Civil Procedure section 2017.010 defines the typical scope of discovery:

[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

However, the typical scope of discovery is severely limited when a party requests information that is protected by the constitutional right of privacy.  In that situation, the party seeking discovery bears a burden that is “particularly heavy”.  Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 855.  “[T]he party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.”  Lantz, supra (emphasis supplied).  See also Palay v. Sup. Ct. (1993) 18 Cal.App.4th 919, 933; Harris v. Sup. Ct. (1992) 3 Cal.App.4th 661, 665.

In addition to demonstrating a compelling need, a party seeking discovery of private information bears the burden of “making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.”  Harris, supra (citing Britt, supra 20 Cal.3d at 864).  Davis, supra 7 Cal.App.4th at 1017 (“The burden is on the party seeking the constitutionally protected information to establish direct relevance.”). 

A demonstration of direct relevance starts with the proposition that mere speculation is insufficient.  “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.”  Davis, supra, 7 Cal.App.4th at 1017.  Mendez v. Superior Court, (1988) 206 Cal.App.3d 557, 571 (“It would be anomalous for a trial court to accept conjecture as a basis for discovery when there is no submitted support for the underlying assumption.”).

If an intrusion on the right of privacy is deemed necessary in a particular case, “any such intrusion should be the minimum intrusion necessary to achieve its objective.”  Lantz, supra (citing Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 566–567, and Wood v. Superior Court (1985) 166 Cal.App.3d 1138).  Gherardini, supra (The party seeking discovery of private information must use the “least intrusive means.”).  Blinder v. Superior Court (1987) 196 Cal.App.3d 893, 900 (“[T]he scope of such disclosure will be narrowly circumscribed; such an invasion of the right of privacy ‘must be drawn with narrow specificity.’”).

In Roberts v. Superior Court (1973) 9 Cal.3d 330, plaintiff was injured in an automobile accident, precipitating a personal injury action in which she alleged she was “’rendered sick, sore, lame and disabled’” as a result of defendant’s negligence.  In the course of general discovery, it was revealed that plaintiff, in the past, had received psychiatric treatment.  Arguing that plaintiff’s assertion that she was “sore” and “disabled” included a mental component as well as the physical, defendant sought disclosure of the psychiatric records on the basis of direct relevance.  In disallowing discovery of the records, the California Supreme Court stated:

We must of course recognize that any physical injury is likely to have a ‘mental component’ in the form of the pain suffered by the injured person, at least insofar as he is conscious of the physical injury.  Presumably, the perception of pain from a particular injury will vary among individuals.  Thus, in every lawsuit involving personal injuries, a mental component may be said to be at issue, in that limited sense at least.  However, to allow discovery of past psychiatric treatment merely to ascertain whether the patient’s past condition may have decreased his tolerance to pain or whether the patient may have discussed with his psychotherapist complaints similar to those to be litigated, would defeat the purpose of the [physician-patient] privilege . . . .

Id. at 339. 

The California Supreme Court summarily rejected the notion that a general claim for emotional distress damages constitutes a waiver of a person’s right to privacy in their medical records:

If the provision had as broad an effect as is suggested by petitioner, it might effectively deter many psychotherapeutic patients from instituting any general claim for mental suffering and damage out of fear of opening up all past communications to discovery. This result would clearly be an intolerable and overbroad intrusion into the patient’s privacy, not sufficiently limited to the legitimate state interest embodied in the provision and would create opportunities for harassment and blackmail.

In re Lifschutz (1970) 2 Cal.3d 415, 435.

Other than information that is directly relevant to the medical conditions at issue in the case, “[d]isclosure cannot be compelled with respect to other aspects of the patient-litigant’s personality even though they may, in some sense, be ‘relevant’ to the substantive issues of litigation.”  Id.  See also Fitzgerald v. Cassil (N.D.Cal. 2003) 216 F.R.D. 632, 637 (holding that there was no waiver of the physician-patient privilege when only garden variety emotional distress was alleged).