holding that “the filing of a wrongful death action is not ipso facto a waiver of the psychotherapist-patient privilege held by a plaintiff’
How later courts described this case
- holding that “the filing of a wrongful death action is not ipso facto a waiver of the psychotherapist-patient privilege held by a plaintiff’
- the filing of an action alleging damages for grief and loss of companionship does not waive physician-patient privilege and discovery of “psychiatrists, psychologists, therapists and/or counselors” and “mental health care history” in general is prohibited (citation and internal quotation marks omitted)
Written by the judges who cited it.
The opinion
ORDER
Original jurisdiction is assumed. Art. 7 § 4, Okla. Const. The Court finds, after hearing, that
(1) the underlying wrongful death action, which is founded on allegations of medical malpractice, was brought by the petitioners pursuant to 12 00.98.2001 $ 1053;
(2) they seek recovery on only those items of damage which are allowed by statute;
(8) with respect to grief, loss of companionship, and the like, no expert witnesses are expected to testify;
(4) the respondent-judge concluded that the mere "filing" of the underlying action "placed [petitioners']...physical, mental or emotional condition in issue," making their mental health care history, if any, discoverable.
The Court concludes and holds that
(1) the filing of a wrongful death action is not ipso facto a waiver of the psychotherapist-patient privilege held by a plaintiff pursuant to 12 O.S. 2001 § 2508. Higginbotham v. Jackson, 1994 OK 8 , ¶0, 869 P.2d 319 ; Nitzel v. Jackson, 1994 OK 49 . ¶ 1, 879 P.2d 1222, 1223 ; see also Avery v. Nelson, 1969 OK 75, ¶ 17 , 455 P.2d 75, 79 ;
(2) grief and loss of companionship are items of recovery in a statutory wrongful death action, not elements of a claim or cause of action for medical malpractice. 12 0.8. 2001 § 1058; Death of Lofton v. Green, 1995 OK 109, ¶ 11 , 905 P.2d 790, 793 ; Crossett v. Andrews, 1954 OK 224 , ¶ 4, 277 P.2d 117, 118 ; Lone Star Gas Co. v. Parsons, 1932 OK 497, ¶ 28 , 159 Okla. 52 , 14 P.2d 369, 376 ;
(3) petitioners do not rely upon their mental or emotional conditions as an element of their claims within the meaning of 12 O.S. 2001 § 2503(D)(8). See Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141 , ¶ 1, n.2, 916 P.2d 241, 244, n. 2 ; Computer Publications, Inc. v. Welton, 2002 OK 50, ¶13 , 49 P.3d 732, 736 ;
(4) the self-executing terms of 76 0.8. 2001 § 19(B) provide no legal grounds for compelling the disclosure of protected confidential information or communications required to be revealed by the order under *861 consideration, because the petitioners are not patients whose medical or other health care records are within the seope of discovery authorized by § 19(B). See Johnson v. District Court of Oklahoma County, 1987 OK 47,¶ 4 , 738 P.2d 151, 153 ; Seaberg v. Lockard, 1990 OK 40 , ¶ 3, 800 P.2d 230, 231 .
Let the writ issue, prohibiting the respondent-judge, or any other assigned judge, in the underlying action, cause No. CJ-2002-8271, on the docket of the District Court, Oklahoma County, from enforcing the order, filed on March 25, 2003, to the extent that it "relates to discovery of psychiatrists, psychologists, therapists and/or counselors" and to the discovery of the mental health care history, if any, of petitioners. Brown v. Blevins, 1998 OK 104 , 968 P.2d 1218 . See also Bain v. Superior Court, 148 Ariz. 331 , 714 P.2d 824, 828 (Ariz.1986
WATT, C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, SUMMERS, BOUDREAU, WINCHESTER, JJ. Concur.