Sample Motion to Exclude Plaintiff’s Psychiatric Records

ABOUT THIS FORM

This is a sample motion seeking to exclude the plaintiff’s psychiatric records in an accident case. The motion seeks to block the defendant’s discovery requests related to the plaintiff’s mental health treatment records. The defendants in this case sought to get these records by subpoenaing the plaintiff’s psychiatrist. This motion asks the court to quash that subpoena and block and additional discovery requests related to mental health.

IN THE CIRCUIT COURT OF MARYLAND FOR BALTIMORE COUNTY

DEBORAH DOE                                                *                                            

Plaintiff,                                                   *        Case No.: 

v.                                                                      *

ANN HANZLIK                                                 * 

Defendant.                                               *

  *          *          *          *          *          *          *          *          *          *          *          * 

PLAINTIFF’S MOTION TO EXCLUDE PSYCHIATRIC RECORDS 

Plaintiff, Deborah Doe, by and through her attorneys, Ronald V. Miller, Jr., Rodney M. Gaston and Miller & Zois, LLC, and requests that this Honorable Court strike the Defendant’s Notice of Deposition for Doctor Grace-Yun, quash the Subpoena served on Dr. Grace-Yun, and preclude the Defendant(s) from making any inquiry into any of the Plaintiff’s mental health treatment and in support thereof states as follows:

I.   INTRODUCTION

The case at bar involves a claim for damages arising out of an automobile collision that occurred on February 9, 2017.  The Court has already granted the Plaintiff’s Motion for Partial Summary Judgment on the issue of liability and has ordered that the case proceed to trial solely on the issue of damages.

In accordance with the scheduling order dated September 21, 2018, all discovery was to be concluded by April 21, 2019. On May 9, 2019, Defendant Ann Hanzlik filed a Notice of Deposition Duces Tecum noting the deposition of Doctor Candis Grace-Yun on July 9, 2019. Defendant Halzlik also caused a subpoena to be issued commanding Dr. Candice Grace-Yun, a psychiatrist, to appear for her deposition on July 9, 2019, at Records Recovery Services at 125213 Hanover Pike, Upperco, Maryland, 21155 and to bring with her all of the Plaintiff’s mental health records. A copy of both the Notice of Deposition and the Subpoena are attached hereto and incorporated by reference herein as Exhibit 1.

For the reasons stated below the Plaintiff is requesting that this Honorable Court strike the Notice of Deposition Duces Tecum, quash the Subpoena issued to Dr. Grace-Yun and grant the Plaintiff a Protective Order precluding the Defendant from obtaining any of the Plaintiff’s mental health records and precluding the Defendants from inquiring into the Plaintiff’s mental health treatment.

II.   THE DISCOVERY ATTEMPTED BY THE DEFENDANT IS IN VIOLATION OF THE SCHEDULING ORDER

The Defendant is obviously attempting to engage in discovery in violation of the discovery deadline set by the Court. This Honorable Court, in accordance with Md. Rule 2-504(b)(1)(D),  promulgated a scheduling order in the case at bar which set a discovery deadline April 6, 2018. Setting a discovery deadline is mandatory under Rule 2-504 and all parties are required to obey the orders of the court.  

The deposition to obtain the Plaintiff’s mental health records was noted by the Defendant on May 9, 2019, with the actual deposition scheduled for July 9, 2019-both dates well beyond the discovery deadline.

The Plaintiff has not consented to any extension of the discovery deadline and has not consented to the release of her protected mental health records. Additionally, the Defendant has not proffered any reason to extend the discovery deadline and has not moved for any extension of the discovery deadline moved.

The only conclusion that can be drawn for the above is that the Defendant is attempting to engage in discovery outside of the discovery deadline without leave of court. If permitted, this blatant violation would render the scheduling order in the case at bar a nullity and promote non-compliance with orders utilized by the court to insure the efficient movement of a litigated case through the court system. Simply put, there is no justification for this discovery abuse. This Notice of Deposition Decus Tecum should be stricken and the Subpoena for Doctor Grace –Yun should be quashed.

III.   THE DEFENDANT HAS NOT PROVEN THAT THE PLAINTIFF, BY SIMPLY ALLEGING A PHYSICAL INJURY TO HER BODY,  HAS PLACED HER MENTAL CONDITION “IN CONTROVERSY” THEREBY WAIVING HER PRIVILEGE UNDER COURTS AND JUDICIAL PROCEEDINGS ARTICLE §9-109.

In addition to violating the Scheduling Order in the case at bar, the Defendant has failed to set forth any facts to warrant an invasion into the Plaintiff’s mental health records.  The Plaintiff’s mental health records are protected by statute. The Defendant has not suggested, much less established, that the Plaintiff, simply by filing car accident lawsuit, has placed her mental health in controversy thereby waiving the protection afforded to her under Maryland law.

(A) Procedural Requirements and Burdens

The Defendant, in her attempt to obtain the Plaintiff’s mental health records, is mandated to comply with two Maryland Rules of Evidence. Those rules are 5-104 and 5-301. Maryland Rule of Evidence 5-104 states in part:

(a) Questions of Admissibility Generally. Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination, the court may, in the interests of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.

Emphasis added.

Maryland Rule of Evidence 5-301 states in part:

Presumptions in Civil Actions Effect. Unless otherwise provided by statute or by these rules, in all civil actions a presumption imposes on the party against whom it is directed the burden of producing evidence to rebut the presumption. If that party introduces evidence tending to disprove the presumed fact, the presumption will retain the effect of creating a question to be decided by the trier of fact unless the court concludes that such evidence is legally insufficient or is so conclusive that it rebuts the presumption as a matter of law.   

This compliance is discussed in detail in the case of In Re Matthew, 113 Md. App. 701(1997). In that case, the Maryland Court of Special Appeals clearly stated that under C.J.P. 9-109, the party   “relying on a waiver of the privilege has the burden to show waiver.”

The Court further stated that: “… ‘before disclosure will be ordered, the moving party must show, usually at a hearing, some connection between the records sought, the issue before the court, and the likelihood that information relevant to the trial would be discovered .’ ” Id. at 710(emphasis added), quoting from Goldsmith v. State 337 Md. 112,127-28. (1995).

Judge Cathell wrote that the procedure to be followed by the Court when addressing an alleged waiver of patient/psychiatric privilege should be the same procedure in determining a waiver of an executive privilege is as follows:

[W] hen a formal claim of executive privilege is made, with an affidavit stating that the demanded materials are of a type that fall within the scope of the privilege, they are presumptively privileged even from in camera inspection. The burden is on the party seeking production to make a preliminary showing that the communications or documents may not be privileged….Consequently, absent such a preliminary showing by the party demanding disclosure, the claim of executive privilege should be honored without requiring an in camera inspection.

Quoting from Hamilton v. Verdow, 287 Md. 544,566-567(1980).

Records containing “…information about communications between the patient and their psychiatrist are presumptively privileged.” See Reynolds v. State, 98 Md. App. 348,366 (1993).

Much to the Defendant’s chagrin, the age-old defense claim that the records “may have a bearing on the issue of credibility” is insufficient as a matter of law to warrant a fishing expedition into the Plaintiff’s mental health records in the case at bar. This argument was buried by Judge Chasanow in the Goldsmith case when he stated:

We cannot permit a privilege to be abrogated at the trial stage by the mere assertion that privileged records may contain information relevant to credibility. To do so would virtually destroy the psychotherapist-patient privilege of crime victims. It has long been recognized that privileges, by their very nature, restrict access to information which would otherwise be disclosed. The rationale for this restriction has been our recognition of the social importance of protecting the privacy encompassed by specified relationships.

Goldsmith at 133.

The Defendant, therefore, has two procedural hurdles to overcome before she can even engage in discovery to access the Plaintiff’s mental health records. She must affirmatively establish that the Plaintiff has placed her mental condition in issue thereby creating a waiver of her privilege under C.J.P. 9-109, and she must also prove the likelihood that the requested records are relevant to the civil case at bar. For the legal arguments that follow, the Defendant has not met this heavy burden and her Notice of Deposition Decus Tecum should be stricken, the Subpoena issued to Doctor Candice Grace-Yun should be quashed, and she should be precluded from engaging in a fishing expedition into the Plaintiff’s mental health and treatment.

Parenthetically, the Court in In Re Matthew, supra, held that a mother does not place her mental condition in issue when her fitness to be a parent is challenged in a CINA action filed by the local Department of Social Services and then overturned the trial court’s decision ordering the release of her psychiatric records. A similar finding was reached by the Court of Appeals in the case of Laznovsky v. Laznovsky, 357 Md. 586 (2000) wherein the Court held that “… a person seeking an award of child custody that claims to be a fit parent, does not, without more, waive the confidential psychiatric/psychologist-parent privilege in respect to her or his past mental health ‘diagnosis and treatment’ communications and records…. If it were the law in Maryland that anyone seeking custody of children specifically placed their mental condition in issue, there would be no psychiatrist-patient privilege in custody disputes.”  

Plaintiff would also note that from a procedural standpoint, the Defendant has, by allowing the discovery deadline to lapse, forfeited any opportunity to request a hearing on the alleged waiver of psychiatric privilege by the Plaintiff to justify additional discovery in the case at bar. 

(B) Substantive Legal Argument

As no common law patient/psychiatrist confidentially privilege exists under Maryland Law, the State Legislature by enacting Courts and Judicial Proceedings Article Section 9-109 provided protection for patients who seek out treatment from mental health providers which include Psychiatrists. The pertinent part of the statute reads as follows:
(b) Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing:   

1) Communications relating to diagnosis or treatment of the patient; or

2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment….

(d) There is no privilege if:…

(3) In a civil or criminal proceeding:

(i) The patient introduces his mental condition as an element of his claim or defense; …

This privilege has been carefully guarded by our appellate courts. The Court of Special Appeals of Maryland in McCormack v. Bd. of Educ., 158 Md. App. 292(2004) set forth the reasons for this protection when it stated:   

We begin our analysis by noting that “the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.’” Jaffee v. Redmond, 518 U.S. 1, 10, 135 L. Ed. 2d 337, 116 S. Ct. 1923 (1996) (quoting Trammel v. United States, 445 U.S. 40, 51, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980)).  

Highlighting the importance of that privilege, the Supreme Court stated:”
Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests.   Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.

Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace.

For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.”

As the Court of Appeals succinctly put it in Laznovsky v. Laznovsky, 357 Md. 586, 745 A.2d 1054 (2000), “‘many physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient’s confidence or he cannot help him.’” Id. at 613 n.13   (quoting Taylor v. United States, 95 U.S. App. D.C. 373, 222 F.2d 398, 401 (D.C. Cir. 1955)). Indeed, the privilege not only serves the private interest of the patient “by protecting confidential communications between a psychotherapist and her patient from involuntary disclosure,” but it “serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Jaffee, 518 U.S. at 11. Nor can anyone dispute that “the mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Id. at 305-306.

In actuality, the Defendant is asking this Court to hold that any time a Plaintiff files a claim for personal injuries and simply alleges in the Ad Damnum clause, mental anguish, pain and suffering, that he/she always ” introduces his/her mental condition” into the proceeding. Unfortunately for the Defendant, there is no Maryland Appellate case that supports this unreasonable position. In fact, the Defendant cannot cite a single Maryland case that holds that in a personal injury civil action wherein the Plaintiff has not alleged a specific mental injury and will not offer psychiatric testimony at trial- that this qualifies as a waiver of the privilege found in C.J.P. Section 9-109.

Due to the lack of Maryland case law on this specific legal issue, the Plaintiff proffers that an analysis of Federal law (in particular, how Federal Magistrates and Judges evaluate and balance the Defendant’s request for Mental Evaluations in civil matters) is dispositive in resolving the issue at bar. The ultimate outcome hinges on whether the Plaintiff has placed his/her “mental condition in issue”.

The case of Hill v. Huddelston, 263 F. Supp. 108 (D. Md. 1976) is perhaps the leading case on the waiver of the patient /psychiatric privilege. This case involved a civil action for monetary damages arising out of a personal injury action. Mrs. Hill, a Maryland resident, was injured in an automobile collision in Tennessee. As part of her claim she alleged that “… her health has been permanently damaged by the physical and nervous shock, that she has been under going regular treatment for conditions caused by the accident and that her capacity to work and enjoy life has been permanently destroyed.”  Id. at 109.  The Plaintiff’s treating psychiatrist was deposed by agreement of the parties and provided testimony that the Plaintiff: 


…who is 55 years old, had suffered from headaches and other troubles for many years before the accident; that he saw her for the first time after the accident and treated her for headaches and depression, which might be related to each other in various ways; that there is a reasonable probability that the injuries sustained in the automobile accident were a factor aggravating the headaches, possibly causing depression also.

Id. at 209.

The doctor on cross-examination indicated that “‘other factors related to life events and personality make–up could have contributed to the depression and could have aggravated the headaches.”  Id. at 109-110. When furthered questioned by defense counsel on these “other factors,” the doctor refused to explain his answer invoking the psychiatric/patient privilege found in the annotated Code of Maryland, Article 35, Section 13a. (which mirrors the current Maryland Statute applicable to the case at bar- C.J.P. 9-109).

The court in Hillsupra, held that the Plaintiff’s allegations in her complaint coupled with the purported testimony of her psychiatrist regarding the “…possible effect of the accident on her physical, mental and emotional condition, including her headaches and depression, have introduced her mental condition as an element of her claim, and she has waived her right to claim any privilege under Art. 35, sec 13A, with respect to any communications relevant to her physical, mental, or emotional condition before as well as after the accident.” Id. at 110.   

The Plaintiff in Hill, unlike the Plaintiff in this case, specifically claimed an aggravation of a pre-existing mental condition (i.e. her headaches and depression) as part of her claim and attempted to proffer expert testimony from her psychiatrist in support of same while in the same breath refusing to permit the Defendant from inquiring into her pre-existing mental health. This is clearly not permissible and the Court correctly held that she waived her patient/psychiatrist privilege in so doing. 

Unfortunately for the Defendant,  the damages claimed by Ms. Hill which resulted in a waiver of her psychiatric privileged are absent in the case at bar. The Plaintiff in the case at bar: 1) is not making a claim for aggravation of a pre-existing mental injury, 2) is not making a claim for any specific mental injury, 3) is not making a claim for lost wages,  4) has specifically informed the Defendant (via the motion herein) that she will not mention any psychiatric care she has received in the past or is currently receiving in her case in chief, and 5) will not offer any psychiatric testimony at trial. It is the Defendant who is trying to interject the Plaintiff’s mental condition into the case at bar for the sole reason of conducting a fishing expedition into the Plaintiff’s mental health records. This tactic is not authorized under Hill.

Maryland Rule 2-423 states:  ” When the mental or physical condition…of a party is in controversy, the Court may order the party to submit to a mental or physical examination…” Federal Rule of Civil Procedure 35(a)requires a party to submit to a Physical or Mental Examination when “…the mental or physical condition…of a party…is in controversy…”   A comparison of the State and Federal rules applicable to mental examinations coupled with the legal analyses supplied by the Federal bench warrant  only one conclusion- that the plaintiff herein has not placed her mental condition “in controversy” thereby preserving her privilege against disclosure of her mental health treatment records.  

In Turner vs. Imperial Stores, 161 F.R.D. 89 (D.S.D. Cal 1995), U.S. Magistrate Judge Aaron held that a Plaintiff who claimed damages for humiliation, mental anguish, and emotional distress arising out of a wrongful termination claim under Title VII of the Civil Rights Act of 1964 claim did not place her mental condition in controversy and denied the Defendant’s request for an Exam under F.R.C.P.  35.  The Defendant claimed that because the Plaintiff claimed emotional distress in her pleading that “an independent examination is necessary because, without it, Defendants will have no way of evaluating Turner’s claim of emotional distress.” Id. at 91. The Plaintiff countered arguing that as she “has not received psychological care in relation to this action” the request is unwarranted. Plaintiff also proffered that “there is no mental disability claimed by Robin Turner. Her general damages consist of the distress and anxiety that arises in the normal course of human events when a person suffers the indignities and deprivation of human rights…the extent of her mental suffering is limited to anxiety and humiliation as would be expected of any victim of tortuous mistreatment.” Id. at 99-92.

Judge Aaron then reviewed many cases wherein that Federal Court did and did not find that the Plaintiffs had placed their mental condition in controversy. Judge Aaron cited only three cases wherein the Federal Bench ordered a Mental Exam wherein the Plaintiff had simply alleged mental pain and suffering in their pleadings and announced that, “These three cases are the exception.

Most cases in which courts have ordered mental examinations pursuant to Rule 35(a) involve something more than just a claim of emotional distress.” Id. at 1923. The majority of the cases which held to the contrary were similar to the case of Cody v. Marriott Corporation, 103 F.R.D. 421 (D. Mass.1984). Cody involved an employment discrimination action and the Plaintiff therein was not required to undergo a Mental Exam by simply claming emotional distress as part of her damages. U.S. Magistrate Judge Joyce London Alexander announced that “The Court does not view the case at bar as an instance where the mental state of a party has been affirmatively placed in controversy.  Plaintiff merely has made a claim of emotional distress, not a claim of a psychiatric disorder requiring psychiatric or psychological counseling.” See Cody at 424. 

Judge Aaron noted that the definition of “mental” as announced in by the Court in Tomlin v. Holeck, 150 F.R.D. 628 (D. Minn. 1993), when addressing Rule 35(a) examinations refers “…. to  ‘mental disorders and psychiatric aberrations.’” .   For a Plaintiff to put his mental condition in controversy, ” …  ‘a plaintiff must  assert a claim of mental or psychiatric injury.’”    See Turner at 94  quoting from Tomlin at 630. Plaintiff Deborah Doe has not claimed any such injury in the case at bar.

In summation, Judge Aaron announced that “… courts will order plaintiffs to undergo mental examinations where the cases involve, in addition to a claim of emotional distress, one or more of the following: 1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress, 4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff’s concession that his or her emotional condition is ‘ in controversy’ within the meaning of Rule 35(a).” Id. at 95.
The Court concluded its opinion with the following analysis which mirrors the Plaintiff’s position in the case at bar:

Robin Turner has not placed her mental condition ‘in controversy’ within the meaning of Rule 35(a) of the Federal Rules Of Civil Procedure by claiming damages for ‘ humiliation, mental anguish, and emotional distress.’ Turner has not brought a cause of action for either intentional or negligent infliction of emotional distress; she has not alleged that she suffers from specific psychiatric injury or disorder as a result of the defendants’ conduct; she does not claim to suffer from unusually severe emotional distress, and she does not concede that her mental condition is ‘in controversy’. Rather, she merely claims damages for emotional distress which she says that she suffered as a result of the defendants’ actions alleged in her complaint. This Court is unwilling to set a precedent requiring a party to undergo an independent psychiatric examination merely because the party claims damages or emotional distress in her complaint.

Id. at 98.

Footnote 4 in the opinion speaks volumes to the Defendant’s attempt herein to wrongfully delve into the plaintiff’s mental health records and reads: ” …Sweeping examinations of a party who has not affirmatively put into issue [her] own mental …condition are not to be automatically ordered merely because the person ‘ has made a claim of emotional distress…’ To hold otherwise would mean that such examinations could be ordered routinely in cases where there is a claim of damages for emotional distress.” Id. at 97.  Quoting from Cody at 442, quoting in part from Schlagenhauf v. Holder, 379 U.S. 104, at 121-22.

Judge Gawthrop in the case of Smith v. J.I. Corporation, 163 F.R.D. 229 (D.E.D.Pa.1995) perhaps captured best the trial tactics attempted by defendants who try to wrongfully access a plaintiff’s mental health records in a personal injury claim. (The Plaintiff in Smith was injured by a backhoe and filed a products liability action against the manufacturer.) Judge Gawthrop’s stern holding is germane here: 

For the reasons discussed above, the court also determines that the defendant is not entitled to the plaintiff’s psychological records, with the exception of the records kept by the behavioral psychologists whose bills the plaintiff claims are compensable damages in this case. Any psychiatric disorders from which the plaintiff has suffered are not relevant to this case. Further, so long as the plaintiff does not claim that the psychological treatment for the ’embarrassment’ which he suffers as a result of this injury is compensable, I shall not require him to provide the defendant with records of therapy sessions in which he discussed this issue. Even if certain of these records are not privileged, which the defendant argues, they concern very private matters which I shall not order the plaintiff to divulge in the absence of evidence that they will lead to discovery of admissible evidence. The practice seems to be more and more in vogue of late for defendants to seek to partake of the in terrorem tactic of visiting upon a plaintiff a particularly intrusive incursion: examination by a psychiatrist, and other psychological delvings. Discovery has its virtues; trial by ambush has gone the way of copies by carbon paper. Procedural foreplay has become a cottage industry. Litigants now largely spend their time not in the courtroom battles, but in pretrial skirmishes—which is probably a good thing, as we hardly have enough courtrooms to contain today’s barristerial throngs. But it has been observed in some quarters that discovery has on occasion even been used as a delaying tactic, a procedural roadblock to trial. So also, some have suggested that it has been used in a way to harass and intimidate plaintiffs into dropping their lawsuits, rather than subjecting themselves to the gauntlet of pretrial probings. This squarely falls within that category and is not to be countenanced…. In cases such as this one—your garden variety tort quest for damages, to include pain and suffering-psychiatric examination should be the exception, not the rule. ” 

Id. at 231-232(emphasis added).

In accordance with the cases mentioned above, the Plaintiff is requesting that this Court follow the definition of  “mental” as announced in Tomlin, supra and follow the guidelines set forth by Judge Aaron in Turner, supra, and hold that the Defendants: 1) have not affirmatively established that the Plaintiff, by simply filing a personal injury action for pain and suffering, has placed her mental condition in issue warranting a waiver of her privilege against disclosure of her mental health records, and 2) have failed under In Re Matthew, supra to prove to this Honorable Court the likelihood that any of the sought after mental health records are relevant to any issue before this Court and grant the Plaintiff’s Motion for a Protective Order.

WHEREFORE: For all of the above-stated reasons the Plaintiff respectfully requests that this Honorable Court: 1) Strike the Defendant’s Notice of Records Deposition pertaining to Candice Grace-Yun, M.D.; 2) Quash the subpoena issued to Candice Grace-Yun, M.D.; 3) Grant the Plaintiff’s Motion for a Protective Order, and 4) Grant any and all other relief that the Plaintiff’s cause may require.

Respectfully submitted,
MILLER & ZOIS, LLC

                                                                       

What has the U.S. Supreme Court said about the patient-therapist privilege? 

In Jaffe v. Redmond, 518 U.S. 1, 10 (1996), the United States Supreme Court of the United States weighed in on the importance of protecting the patient-therapist privilege: 

Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.

Clearly, our highest court appreciates the delicacy of mental health records and the importance of maintaining the patient’s privacy whenever possible.  

Does Maryland’s Constitution protect the disclosure of a patient’s medical records?

Articles 24 and 47(a) of the Maryland Declaration of Rights recognize that a car accident victim’s privacy interests naturally compete with a car accident lawsuit that puts their physical and mental condition at issue. The Maryland Court of Special Appeals has addressed the “issues that arise whenever a defendant’s constitutional right to discover favorable evidence clashes with a victim’s statutory privilege and constitutional right to privacy.” In Reynolds v. State, 98 Md App. 348, 365 (1993), the court ruled that “every citizen has a constitutional right of privacy in his or her medical records.”

What Maryland law defines the patient-therapist privilege?

Md. Code Ann. Cts & Jud. Prod. § 9-109(b) defines that Maryland patient-therapist privilege as follows:

Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing:
1) Communications relating to diagnosis or treatment of the patient; or
2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment.

  • Take a look at Florida law on shielding psychiatric records
  • Psychiatric records from the lens of HIPAA
  • Semmes, Bowen, and Semmes put together a nice look at the disclosure of mental health records in Maryland