PSYCH RECORDS IN EMOTIONAL DISTRESS CASES: WHERE WE WENT WRONG AND HOW TO FIX IT

Written by Ian Pike

In cases where emotional distress is a recoverable form of general damages — which could mean anything from personal injury to employment to credit reporting violations — fights over psychiatric records can become time-wasting sideshows. Defendant seeks discovery, in many cases right out of the gate, of plaintiff’s medical records germane to mental health treatment for something like 5 or 10 years prior to the date of any alleged wrongdoing. Plaintiff objects, insisting the scope of discovery encompasses nothing beyond the emotional harm the plaintiff directly attributes to the defendant’s conduct. Defendant counters discovery is relevant to finding an alternative "cause" for any emotional distress the plaintiff claims as damages. Faced with a dispute over discovery into plaintiff’s history of mental health treatment, a judge will likely rule the defendant may take discovery for some arbitrary period extending backwards and forwards in time based on the allegations of the complaint. (See, e.g., Haddock v. Tasker (Super Ct. L.A. County, Jan. 13, 2021, 20STCV4983) 2021 Cal.Super. Lexis 6611, at pp. *11-14.) Courts pick and choose, seemingly limited only by their discretion, between what is or is not fair game in discovery. (See, e.g., Andrews v. Am. River Ag. (Super. Ct. Sac. County, Oct. 9, 2018, No. 34-2018-00242127-CU-MC-GDS) 2018 Cal.Super. Lexis 112469, at pp. *2-6.)

This back-and-forth debate has a ring of common sense, and lawyers and judges have been using it for ages. There’s even some case law about introducing this evidence at trial. (See Smith v. L.A. Unified School Dist. (C.D.Cal., Feb. 13, 2018, No. CV 16-2358 SS) 2018 U.S.Dist. Lexis 229508, at pp. *5-*6 [collecting cases]; see also Herbert v. Architect of the Capitol (D.D.C. 2018) 920 F.Supp.2d 33, 38-41.) But this entire approach is doctrinally wrong at a fundamental level. This article will show how mental health treatment history is generally irrelevant to causation, despite decades of conventional wisdom to the contrary. All the same, that does not mean a plaintiff’s history of mental health treatment is never discoverable, and this article also proposes a framework for structuring disputes over the discoverability of psychiatric records.

I. "CAUSATION" IS NOT THE ISSUE