What Does the Law Expect of Me? Part III David G. Jensen, J.D. CAMFT Staff Attorney

What Does the LawExpect of Me? Part III

David G. Jensen, J.D.

CAMFT Staff Attorney

Copyright Notice

PowerPoint presentation and accompanying handout are the property of CAMFT.

All rights reserved.

© California Association of Marriage and Family Therapists 2001-2005

Disclaimer

The information provided in this presentation is for EDUCATIONAL PURPOSES ONLY! It is NOT the DEFINITIVE word on these

subjects! It is NOT intended to be a SUBSTITUTE for

INDEPENDENT LEGAL ADVICE!

Introduction

Nine life-changing words! Goal = Raise the level of discourse among

and by MFTs about the psychotherapist-patient privilege and its nuances

The deeper the roots; the higher the reach!

Good or great therapist? Relax & Play!

Introduction

Agenda for the Day The Psychotherapist-Patient Privilege What kind of witness are you? Nuts & Bolts of Subpoenas

The Psychotherapist-Patient Privilege

Introduction

Introduction

The Problem: A Language You Probably Don’t Understand Your res ipsa loquitor has just “pierced the

corporate veil,” which has resulted in “fruit of the poisonous tree” being let into the stream of commerce; consequently, under the legal doctrine of respondeat superior, I am going to sue you and you are going to lose your license and be liable to me for punitive damages!

The Solution: Knowledge!

Introduction

Why study this stuff? 1. One of your most SACRED obligations is

to ASSERT the psychotherapist-patient privilege, so it behooves you to understand and appreciate it in all its complexity. Tis a beautiful thing!

2. To prepare for the inevitable dialogue with an attorney, whether one on your side, your patient’s side, or the other side!

Introduction

Why study this stuff? 3. So you can STAND UP FOR

YOURSELF! 4. You may have to SAVE the day, or you

may be able to make life for the lawyer representing your client a bit easier!

5. To have a CONTEXT, for the DRAMA playing out in front of you, whether inside or outside of the courtroom

Introduction

The Psychotherapist-Patient Privilege: Types of privileges The Basic Rule Key terms, principles, and concepts of the

psychotherapist-patient privilege What kind of witness are you? Ending the tyranny of the subpoena The End From the Beginning


Types of Privileges

Types of Privileges

So, what is a privilege? Restriction on testimony during a legal

proceeding! But …

Purpose of the privilege: The purpose of the PPP is to protect the privacy

of a patient’s confidential communications to his or her therapist. In re Kristin W. (2001) 94 CA4th 521

Types of Privileges

The psychotherapist-patient privilege: “Psychoanalysis and psychotherapy are

dependent upon the fullest revelation of the most intimate and embarrassing details of the patient’s life.

Unless a patient is assured that such information can and will be held in utmost confidence, he or she will be reluctant to make the full disclosure upon which diagnosis and treatment depends.” San Diego Trolley, Inc. v. Sup. Ct. (2001) 97 CA4th

1083

Types of Privileges

There are two categories of privileges: One category is predicated on a

CONFIDENTIAL RELATIONSHIP: Attorney-client, husband-wife, physician-patient, psychotherapist-patient, clergy-penitent, etc.

The other is predicated on the TYPE OF INFORMATION: the privilege against self-incrimination, official information and informant identity privilege, trade secrets, etc.


The Basic Rule

The Basic Rule

The Basic Rule (“Fundamental Proposition”) regarding the PPP: Absent a WAIVER of the PRIVILEGE, or an

applicable EXCEPTION to privilege, a PATIENT, whether or not a PARTY to the LEGAL PROCEEDING, has a privilege to refuse to disclose, and to prevent others from disclosing, a CONFIDENTIAL COMMUNICATION between PATIENT and PSYCHOTHERAPIST. California Evidence Code §1014

Seems fairly simple, but …

The Basic Rule

The power of the privilege! A timely assertion of privilege CREATES an

AUTOMATIC GROUND for EXCLUSION or NONDISCLOSURE of the privileged information unless and until the judge overrules the assertion of privilege and orders disclosure! California Evidence Code § 914

The Basic Rule

The cant or tilt of the privilege! When the privilege rests on a relationship of

confidence and the privilege is asserted, the communication in question is PRESUMED to have been MADE IN CONFIDENCE, which SHIFTS the burden to the opposing party to establish that the communication was not confidential California Evidence Code § 917(a)

The Basic Rule

The scope of the privilege! The psychotherapist-patient privilege may be

asserted in ALL PROCEEDINGS in which testimony may be compelled, i.e., investigations, inquiries, and administrative proceedings, as well as trials! California Evidence Code §§ 901, 910


Key Terms, Principles, and Concepts

The psychotherapist-patient privilege Key terms, principles, and concepts:

1. Patient 2. Psychotherapist 3. Confidential communications 4. Holder of the privilege 5. Asserting the privilege 6. Waiving of the privilege 7. Some common exceptions to the

privilege


Patient

Key terms, principles, and concepts “Patient” means someone who:

Consults a psychotherapist SUBMITS to an examination by a psychotherapist

for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his or her mental or emotional condition, or

SUBMITS to an examination for the purpose of scientific research on mental or emotional problems California Evidence Code §1011

Key terms, principles, and concepts For purposes of the psychotherapist-patient

privilege, can a dependent child be a patient? Yes! The psychotherapist-patient privilege applies

to confidential communications BETWEEN a dependent CHILD and his or her THERAPIST. See In re Mark L. (2001) 94 CA4th 573 and In re Daniel

C.H. (1990) 220 CA3d 814

Key terms, principles, and concepts “Patient” means:

But, mother who participated in a bonding study was NOT a “PATIENT” within the meaning of the PPP. Hence, information was not protected by the PPP.

Why? She was not seeking a diagnosis or treatment! In re Tabatha G. (1996) 45 CA4th 1159


Psychotherapist

Key terms, principles, and concepts Who is a psychotherapist?

A wrinkle to the rule! Psychotherapist is someone who IS a “X” or who is

REASONABLY BELIEVED by the patient to be a “X”

Includes psychiatrists, psychologists, licensed clinical social workers, licensed marriage and family therapists, registered psychological assistants, registered MFT interns, registered associate clinical social workers, psychological interns, and MFT trainees,* among others


Confidential

Communications

Key terms, principles, and concepts A “CONFIDENTIAL COMMUNICATION.”

INFORMATION TRANSMITTED between patient and psychotherapist +

In the COURSE of that relationship + In CONFIDENCE + By a MEANS which, so far as the patient is

aware, discloses the information to NO third persons …(continued on next slide)

Key terms, principles, and concepts …other than those:

1. Present to FURTHER THE INTERESTS of the PATIENT in the consultation

2. To whom disclosure is reasonably necessary for TRANSMISSION of the information, or

3. To whom the information is reasonably necessary for the ACCOMPLISHMENT OF THE PURPOSE for which the psychotherapist was consulted. California Evidence Code § 1012

Key terms, principles, and concepts Preserving the Confidentiality of

Confidential Communications. The FORGOTTEN exception to confidentiality! Remind patients that they should ONLY disclose

treatment information: 1. To those whom disclosure is

reasonably necessary for transmission of the information, or

2. To those whom the information is reasonably necessary for the accomplishment of the purpose for which the psychotherapist was consulted.

Key terms, principles, and concepts Preserving the Confidentiality of

Confidential Communications. The FORGOTTEN exception to confidentiality!

3. And, do not let anyone in the session unless you determine that the person will somehow further the patient’s therapy or counseling.

Key terms, principles, and concepts But, How Likely is this to Happen?

Consider the case of Manela v. Superior Court! David and Mira Manela are divorcing. Jacob is their four-year old son. This is a raging custody battle with a unique discovery

dispute. Physician-Patient Privilege case with heavy Psychotherapist-

Patient privilege implications Mom contends dad has a seizure disorder that affects

his ability to care for Jacob; dad says all he has is a “tic” that is controlled by medication.

Key terms, principles, and concepts The Seizures:

Mom says dad’s “seizures” are “regular” and last anywhere from 45 seconds to 21/2 minutes.

The seizures usually occur when father awakens from sleep.

Mom declares that father has had the “aura of a seizure” occur while dad was driving and had to pull the car over to the side of the road.

But, no actual seizure occurred while dad was driving! Dad does not lose consciousness when a seizure

occurs.

Key terms, principles, and concepts The Seizures:

Mom says the seizures cause dad’s head, neck, shoulders, and one arm to seize.

The seizures are “extremely loud and very frightening.”

Dad loses his ability to speak and often vomits. Again, dad denies he has a seizure disorder; he says

he has a “tic” and it is controlled by medication.

Key terms, principles, and concepts The Case and the Dispute:

On June 17, 2008, father files a petition for dissolution of the marriage.

Mom replies and requests sole legal custody of Jacob. On August 7, 2008, in his ex parte application, dad

requests joint legal custody; in her response, mom requests sole legal custody.

The judge’s order “temporarily prohibits” dad from driving Jacob until the court obtains more information about dad’s alleged seizure disorder.


On August 12, 2008, mom files a declaration concerning dad’s seizure disorder. She relates that dad is on Tegretol. She requests that dad not be allowed any overnight visits and that dad not drive Jacob.

On August 13, 2008, dad files a declaration from his neurologist, Dr. Gross, who declares that he is treating dad for 9 years for “hypnagogic movements, also known as a “tic disorder.”

Dr. Gross declares dad’s condition is controlled by Tegretol and that dad can drive safely.


On August 14, 2008, mom issues subpoenas to Dr. Cohen and Dr. Morrison to “produce all medical records pertaining to David Manela.”

On August 15, 2008, the court awards joint legal custody, with no restrictions on dad’s driving of Jacob.

On August 29, 2008, dad files a motion to quash the subpoenas, citing the physician-patient privilege.


Mom contends that the medical records would support her seizure argument because: Dr. Morrison had treated dad for seizures when dad

was 11 years old and for some years thereafter. On August 29, 2007, mom was present at an

appointment with Dr. Cohen when dad was examined for his neurological condition.

At that appointment, dad described in detail his seizures to Dr. Cohen.

So, mom’s case or dad’s rights?


Mom contends that dad waived the physician-patient privilege by: Having Dr. Gross file a declaration in the

proceeding about dad’s condition Speaking to Dr. Cohen about his condition in mom’s

presence Mom also argues that dad tendered the issue

of his condition Mom also argues that these waivers of the

privilege apply to Dr. Morrison as well


Dad argues that his communications with Dr. Cohen and Dr. Morrison are protected by: The Physician-Patient Privilege His right to privacy under the state and federal

constitutions

Key terms, principles, and concepts The Court’s Decision:

Dr. Cohen Dad waived the protection of the physician-patient

privilege by allowing mom to be present during his appointment with Dr. Cohen on August 29, 2007.

Dad could offer no evidence as to why her presence was necessary to further his therapy.

What about the marital-communications privilege? No privilege if the legal proceeding is brought by one

spouse against the other

Key terms, principles, and concepts The Court’s Decision:

Dr. Morrison: Dad’s waiver of the privilege concerning Dr. Cohen

and Dr. Gross did not constitute a waiver of the privilege for Dr. Morrison.

The “Tender” Argument: Dad did not tender his medical condition by simply

denying wife’s allegations regarding his condition. The “Right to Privacy” Argument:

Mom is entitled to any “non-privileged documents relating to dad’s tic/seizure.

Key terms, principles, and concepts Is a patient’s name confidential?

Yea, but don’t be surprised if …. The fact that the patient is in therapy has already been

disclosed BY THE PATIENT in answer to questions posed to him or her during the discovery phase of litigation Form Interrogatories

Key terms, principles, and concepts Two important cases:

1. Smith v. Sup. Ct. (1981) 118 CA3d 136: As a general rule, the PPP PROTECTS against the

COMPELLED DISCLOSURE of a patient’s NAME Why? Disclosing the patient’s identity reveals that the

person suffers from mental or emotional problems But, … (see next case)

Key terms, principles, and concepts Is a patient’s name a confidential

communication? 2. County of Alameda v. Sup. Ct. (1987) 194

CA3d 254 Since disclosing the patient’s name only creates a broad

inference of mental or emotional problems, the patient’s name MAY BE DISCLOSED in “extraordinary” cases where the court determines that the need for disclosure is absolutely essential to a cause of action

Key terms, principles, and concepts Some attempts at creative “lawyering.”

But, what about CONFIDENTIALITY and GROUP THERAPY? The presence of other participants in a group therapy

session provides comfort and facilitates treatment. Hence, these communications are reasonably necessary for the purpose for which the psychotherapist was consulted. Farrell L. v. Sup. Ct. (1988) 203 CA3d 521

Key terms, principles, and concepts But, what about CONFIDENTIALITY and

communications from FAMILY MEMBERS? Information crucial to effective treatment and

therapy may necessarily have to come from a patient’s family members. To this extent, communications between the patient’s family and a psychotherapist are privileged. Grosslight v. Sup. Ct. (1977) 72 CA3d 502

Key terms, principles, and concepts But, what about COMMUNICATIONS with

the JUVENILE COURT? In child dependency cases, the “reasonably

necessary” disclosure provision allows a minor’s therapist to give “carefully circumscribed” and “limited testimony” to the juvenile court.

Such testimony helps the court to make “reasoned recommendations and decisions” regarding the child’s welfare. In re Mark L.(2001) 94 CA4th 573

Key terms, principles, and concepts But, what about CONFIDENTIALITY and the

AUDIO-TAPING or VIDEOTAPING of sessions? Confidentiality is not compromised simply by the

fact of audio-taping sessions. The mere act of audio-taping cannot be characterized as a disclosure! Menendez v. Sup. Ct. (1992) 3 C4th 435

Key terms, principles, and concepts But, what about EMAILS to and from a

patient? As long as they are premised on the confidential

relationship, electronic communications do not lose their status as privileged communications Evidence Code § 917(b)

“Electronic” includes fax, email, cell-phones Civil Code § 1633.2(e)

Key terms, principles, and concepts But, we are in “DISCOVERY” and the

information may not be used at trial! The psychotherapist-patient privilege applies to

discovery as well as trial In re Tabatha (1996) 45 Cal.App.4th 1159

Key terms, principles, and concepts Review and Preview: Creating the

psychotherapist-patient privilege: Need three things to create the PRIVILEGE: a

“patient,” a “psychotherapist,” and “confidential communications.”

Other issues: 1. Who HOLDS the privilege? 2. Who can ASSERT the privilege? 3. Who can WAIVE the privilege? 4. Are there EXCEPTIONS to the privilege?


Holding the Privilege

Key terms, principles, and concepts Who holds the privilege?

The “HOLDER” of the privilege is: The patient when he or she has no guardian or

conservator A guardian or conservator of the patient when the

patient has a guardian or conservator The personal representative of the patient if the patient

is dead California Evidence Code § 1013


Interesting case: Boling v. Superior Court (1980) 105 Cal. App. 3d 430 Mom who brought action for the wrongful death of her

son, but did not show that she was her son’s executrix or administratrix was not entitled to assert the psychotherapist-patient privilege on her son’s behalf


For the record, psychotherapists DO NOT HOLD THE PRIVILEGE for their patients.

They ASSERT THE PRIVILEGE on behalf of their patients! See Evidence Code § 1015 and Mavroudis (1980) 102

Cal. App. 3d 594


Asserting the Privilege

Key terms, principles, and concepts Who can ASSERT the privilege? Three (3) Possibilities:

Possibility 1: The “HOLDER” of the privilege, which means: The patient when he or she has no guardian or

conservator A guardian or conservator of the patient when the

patient has a guardian or conservator The personal representative of the patient, if the patient


Key terms, principles, and concepts Who can assert the privilege?

Possibility 2: A person AUTHORIZED TO ASSERT the privilege by the HOLDER of the privilege

Key terms, principles, and concepts Who can assert the privilege?

Possibility 3: The person who was the PSYCHOTHERAPIST at the time the confidential communication was made, but the psychotherapist may not claim the privilege if there is no holder of it in existence or if he or she is otherwise instructed by a person authorized to permit disclosure. California Evidence Code § 1014

Key terms, principles, and concepts The PPP and therapists:

Remember, you have an AFFIRMATIVE OBLIGATION to ASSERT the psychotherapist-patient privilege WHENEVER third parties seek confidential communications! California Evidence Code § 1015

Key terms, principles, and concepts “Asserting the privilege” means:

Good news! No person may be held in CONTEMPT for failure to

disclose information claimed to be privileged unless he or she has failed to comply with an order of a court that he or she disclose such information California Evidence Code § 914(b)


Waiving the Privilege

Key terms, principles, and concepts Waivers of the privilege:

The psychotherapist-patient privilege is “WAIVED” when the patient “VOLUNTARILY ABANDONS” the secrecy of the information that the privilege protects. California Evidence Code § 912(a)


Happens in one of three ways: 1. The patient CONSENTS to the disclosure

(Its OK!) 2. The patient DISCLOSES a “significant

part” of the confidential communication (Oops!) Warning! This could be done without the patient thinking

about the consequences! 3. Due to the underlying facts, there is some

EXCEPTION to the privilege (Trade-off) Exceptions will be discussed later!

Key terms, principles, and concepts Who can waive the privilege?

Since privileges are personal to the holder, only the holder can waive it.

The HOLDER is: The patient when he has no guardian or conservator, A guardian or conservator of the patient when the

patient has a guardian or conservator, or The personal representative of the patient, if the patient


Key terms, principles, and concepts Who can waive the privilege if the patient is a

minor? The In re Daniel problem!

Key terms, principles, and concepts Key question: What is the nature of the

underlying legal proceeding? Civil lawsuit involving child as plaintiff = guardian ad

litem needs to waive Family Court custody or visitation proceeding = has

minor’s counsel been appointed? (Family Code § 3150) If so, minor’s counsel makes the call If not, keep in mind the discretion the law gives you!

But, don’t be surprised if the judge allows mom and/or dad to waive privilege on behalf of the minor

Key terms, principles, and concepts Key question: What is the nature of the

underlying legal proceeding? Juvenile Court dependency proceeding = if the court

finds that the child is of “sufficient age and maturity,” the child can waive privilege; if not, counsel for the child can waive the privilege (Welfare & Institutions Code § 317(f))

What if the minor is just a witness in the underlying legal proceeding, but not a party to such proceeding?


What about MEDICAL RELEASES? They can be WAIVERS of the privilege, but the terms of

the release must be clear and unambiguous! Medical Releases. Two important cases:

1. Roberts v. Sup. Ct. (1973) 9 C3d 330 A form consent was NOT a waiver of the PPP because the

language led the insured to believe that consent applied only to records concerning her physical injuries


Medical Releases. Two important cases: 2. In re Fred J. (1979) 80 CA3d 168

Mother effectively waived her right to assert the PPP in a juvenile court dependency proceeding where, during the Department of Social Services investigation process, she signed three release forms authorizing disclosure of reports from her doctor


What about communicating with a guardian ad litem? Doing so does not waive the PPP!

De Los Santos v. Sup. Ct. (1980) 27 C3d 677


A subtlety: Is there such a thing as a LIMITED WAIVER of the privilege?

Yes! Important case: In re Joseph Lifschutz (1970)

2 Cal.3d 415 Note the year this case was decided!

Key terms, principles, and concepts Facts of the case:

Dr. Lifschutz was a psychiatrist who had a patient who was the victim of an assault

The patient sued his assailant for damages, alleging “physical injuries, pain, suffering, and severe mental and emotional distress”

Key terms, principles, and concepts Facts of the case:

At his deposition, Dr. Lifschutz: 1. Refused to acknowledge that the plaintiff

was his patient, 2. Refused to answer questions about the

patient, and 3. Refused to turn over records pertaining to

his patient Dr. Lifschutz cited “absolute” patient privacy as

justification for his conduct

Key terms, principles, and concepts Facts:

The defendant brought a motion to compel Dr. Lifschutz to answer questions and turn over treatment records, alleging that the patient had tendered his mental or emotional condition in the lawsuit

The Superior Court then ordered Dr. Lifschutz to answer questions and turn over records


Terms of the order: “The witness is hereby ordered to answer the questions

involved in the taking of his deposition and to comply with the production requirements of the subpoena duces tecum issued in this proceeding.

This matter will be continued for 30 days during which time Dr. Lifschutz will comply with this order at a time during said period agreed upon by the parties.

Motion for sanctions and attorney’s fees denied.”


But, Dr. Lifschutz “remained resolute in his refusal to respond or release records.”


Dr. Lifschutz petitioned the Court of Appeal and the U.S. Supreme Court for help, but his remonstrations were denied

A contempt hearing was held, and Dr. Lifschutz was imprisoned for contempt of court

Ultimately, on a writ of habeas corpus, the California Supreme Court reviewed his case

He remained in jail until the case ended or he agreed to comply with the order

Key terms, principles, and concepts Six Points of Law from Lifschutz:

1. A psychotherapist may NOT assert his patient’s privilege with respect to a communication if the privilege has been waived or if the communication falls within the statutory exceptions to the privilege.


2. The mere admission of the existence of the (therapist-patient) relationship does not constitute a disclosure of a “significant part of the communication” to waive the privilege. This stick does not break the camel’s back!


3. The patient-litigant exception allows only a LIMITED INQUIRY into the confidences of the psychotherapist-patient relationship, and compels disclosure of only those matters DIRECTLY RELEVANT to the nature of the specific emotional or mental condition that the patient has voluntarily disclosed and tendered in his or her pleadings or in answer to discovery inquiries.


4. Except when an exception to privilege applies, the trial court may utilize protective measures at its disposal to avoid unwarranted intrusions into the confidences of the relationship between psychotherapist and patient. Is the patient’s lawyer getting a Protective Order?


5. The patient may have to submit some showing that a given communication is not directly related to an issue that the patient has tendered! This means the patient may have to explain, in general

terms, how the information is not relevant


6. In general, the statutory psychotherapist-patient privilege is to be LIBERALLY CONSTRUED in FAVOR of the PATIENT! The tilt of the law is towards the patient and his or her

privacy rights!

All Hail Dr. Lifschutz!

Key terms, principles, and concepts The idea of “Participation & Progress”

Key case: In re Kristine (2001) 94 Cal.App.4th521 Facts:

In August 2000, Kristine was 16 years old and her father physically and sexually abused her

Kristine was made a dependent of the court, and she was placed with her grandparents and then with her uncle, but these placements did not work out

In March 2001, the court ordered Kristine into foster care Kristine ran away from her placements, she skipped

school, she refused to follow rules, she had angry outbursts, and she engaged in self-mutilation

Key terms, principles, and concepts “Participation & Progress”

Facts: In April 2001, Kristine tells the court she “very much

feels in need to talk to someone confidentially” But, she did not want to go to therapy because she did

not trust the therapist, explaining “every time I tell my therapist something, it gets back to my dad”

Detour: What about the “D” word? California Health & Safety Code §123115

Harm treatment relationship? Expose child to a risk of physical or emotional harm?


Facts: Kristine begins living with another uncle, Patrick,

agreeing to comply with his conditions: Attend counseling Attend school Adhere to the house rules


Facts: Since Kristine is a dependent of the court, the county

social worker wants to get information about Kristine from Kristine’s psychotherapist The county: we need the information to implement the

services Kristine needs to make a successful transition from court-dependent minor to adult

Kristine’s attorney says no: communications are protected from disclosure by the psychotherapist-patient privilege!


The court’s decision: The psychotherapist-patient privilege protects Kristine’s

confidential communications and details of the therapy, but does not preclude her therapist from giving circumscribed information, i.e., “PARTICIPATION AND PROGRESS,” to accomplish the information-gathering goal of therapy.

Key question: What information would reasonably assist the court in evaluating whether further orders are necessary for the minor’s benefit, but also preserves the confidentiality of the details of her therapy?

Key terms, principles, and concepts The Role of Minor’s Counsel

California Family Code § 3151 Minor’s Counsel has the following rights:

1. Reasonable access to the child 2. Standing to seek affirmative relief on

behalf of the child 3. Notice of any proceedings 4. The right to take any action available to a

party in the proceeding 5. Access to the child’s records, including

mental health ones

Key terms, principles, and concepts “The Role of Minor’s Counsel”

Minor’s Counsel has the following rights: 6. The right to interview health care

providers and mental health professionals 7. Advance notice of, and the right to refuse,

any psychological examination or evaluation 8. The right to assert or waive any privilege

on behalf of the child 9. The right to seek independent

psychological or physical examination or evaluation of the child for purposes


Some Exceptions

to Privilege

Exceptions: Patient-Litigant

1. The patient-litigant exception: No privilege as to a communication relevant to an

issue concerning the mental or emotional condition of the patient if such an issue has been tendered by: The patient Any party claiming through or under the patient Any party claiming as a beneficiary of a patient through

a contract to which the patient is or was a party A plaintiff for injuries or death to the patient

Evidence Code § 1016


Key questions: 1. Has the patient specifically tendered a

mental or emotional issue in the proceeding? Just because the lawyer says the patient has does not

mean the patient really has! Beware of the “overbroad” problem!

2. Is the communication “directly relevant” to the specific mental or emotional issue tendered by the patient? Not just relevant, but “directly relevant”! Remember In re Lifschutz (1970) 2 C3d 415


What about an allegation of “PAIN and SUFFERING”? Roberts v. Superior Court (1973) 9 C3d 330

Facts: Janet Roberts was injured in an automobile accident

on March 24, 1971. She later filed a personal injury action for damages,

claiming she was “rendered sick, sore, lame, and disabled” by the accident. Specifically, she said she had severe pain in her neck and

back, dizzy spells, and headaches


What about an allegation of “PAIN and SUFFERING”?

Facts: In discovery, she disclosed that she had been

hospitalized for attempting suicide by taking an overdose of pills.

She also disclosed that she had seen Dr. Ely, a psychiatrist.

The defendants then subpoenaed Dr. Ely’s records regarding Ms. Roberts.

Dr. Ely asserted the PPP; the defendants brought a motion to compel.



Facts: A curve ball: the defendants, by subpoenaing Ms. Robert’s

other providers, were able to get Dr. Ely’s reports from her other providers.

Ms. Roberts was able to get an order from the court sealing those records!

Impasse, impasse, impasse Ultimately, The California Supreme Court ruled that:

Dr. Ely’s records were barred from discovery. Dr. Ely’s records should be returned to him.



Courts conclusions: 1. Alleging pain and suffering does NOT constitute

the tendering of a patient’s mental or emotional condition! The case was about neck and back pain, not mental suffering!

2. The assertion of privilege must be upheld where the patient has not specifically placed his or her mental condition at issue.



Courts conclusions: 3. The assertion of privilege must be upheld

where disclosure of confidential information is sought simply upon speculation that there may be a connection between the patient’s treatment and some mental component of his or her injury.

4. The mere exchange of records among health care practitioners treating the patient does not constitute a waiver of the psychotherapist-patient privilege.



Courts conclusions: 5. A signed release or authorization that does not

specifically mention an individual’s mental or emotional condition is not a waiver of the psychotherapist-patient privilege.

6. What about “pain” as a mental or emotional condition?


What about PAIN as a mental or emotional CONDITION? The propositions:

Any physical injury is likely to have the accompanying mental component of pain

Thus, in any lawsuit for personal injuries, a mental component may be said to always be at issue

Court says “No.”


What about PAIN as a mental or emotional CONDITION? Rationale for courts decision:

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 has discussed with his psychotherapist complaints similar to those being litigated would defeat the purpose of the PPP.


What about PREVIOUS psychiatric treatment records? Patterson v. Superior Court (1983) 147 Cal. App. 3d 927

Facts: Patterson was transferred from the psychiatric

ward of Chope Hospital to the Cordilleras Center Patterson’s history indicated two previous suicide

attempts


What about PREVIOUS psychiatric treatment records? Patterson was found to have suicide ideation and

he was placed in seclusion and under close observation at Cordilleras

Three days later Patterson agrees not to harm himself, so seclusion and close observation cease

Two weeks later, but while still in the hospital, Patterson commits suicide


What about PREVIOUS psychiatric treatment records? Patterson’s family brings a wrongful death action

against Cordilleras for negligently failing to take proper measures to protect the decedent from his suicidal urges

Cordilleras seeks to get all of Patterson’s medical and psychiatric records from: Napa State Hospital, Peninsula Hospital Medical Center,

Chope Hospital, Mary’s Help Hospital, McAuley Neuropsychiatric Institute, Sequoia Hospital, and Harry Bryan, M.D.


What about PREVIOUS psychiatric treatment records? The family objects on grounds that his previous

treatment history is not relevant to whether Cordilleras was negligent The family did not allege that Cordilleras caused or

aggravated Patterson’s condition The family did not allege that Cordilleras was negligent

in not investigating Patterson’s past medical history


What about PREVIOUS psychiatric treatment records? Defendants insist Patterson has tendered his

mental or emotional condition The court sides with the defendants, largely

because Patterson’s psychiatric condition was at the heart of the lawsuit

Key questions: What issues have been raised by the plaintiff? What defenses do the defendants have?


What about filing a “Proof of Death” certificate? Grey v. Superior Court (1976) 62 Cal. App. 3d 698

Facts: Dr. Grey was killed when a car he was driving

rear-ended a truck He had a life insurance policy from Northwestern

Mutual Life, which paid double, if Dr. Grey’s death was accidental

But, was it accidental?


What about a “Proof of Death” certificate? The investigating officer’s report concluded that

from the physical evidence, Dr. Grey’s car had drifted off to the right before colliding with the truck Did he fall asleep? Officer suggested the sheriff investigate the possibility of

suicide Grey’s widow filed a “Proof of Death” claim to get

the proceeds from the insurance policy


What about a “Proof of Death” certificate? Mrs. Grey claims Dr. Grey’s death was accidental She also signed an authorization for the release

of Dr. Grey’s medical information, which named 3 physicians, but did not name Dr. Rozansky, who was Grey’s psychiatrist

Northwestern found out about Dr. Rozansky, and it wanted to get Dr. Grey’s records from Rozansky and take Rozansky’s deposition

Mrs. Grey and Rozansky asserted the PPP!


What about a “Proof of Death” certificate? Northwestern believes Dr. Grey committed

suicide, which Mrs. Grey denied Both trial court and appellate court conclude that

Dr. Grey’s records with Dr. Rozansky do not have to be produced: The mere fact of filing a Proof of Death claim does not

waive the PPP The law does not allow an insurer merely to speculate

that, somewhere in an insured’s past life, there may be some indication of a suicidal tendency.


The Hammer versus the Scalpel Hammer:

“Your client has WAIVED privilege by instituting a civil lawsuit against my client!”

“Your client has WAIVED privilege by making an issue of his mental or emotional condition!”

Scalpel: Has the patient “specifically tendered” a mental or

emotional issue in the proceeding? Is the communication “directly relevant” to the specific

mental or emotional issue tendered by the patient?

Exceptions: Psychotherapist/Court 2. Psychotherapist appointed by the court:

No privilege if the psychotherapist was APPOINTED BY THE COURT (or the Board of Prison Terms) to examine the patient (unless the appointment is made at the request of counsel for the defendant in a criminal proceeding to assist in advising the defendant on a plea of insanity or diminished capacity). California Evidence Code § 1017; In re Mark (2001) 94

Cal. App. 4th 573

Exceptions: Psychotherapist/Court 2. Psychotherapist appointed by the court:

Why not? 1. Where the relationship is created by court

order, there is not a sufficiently confidential relationship to warrant the protection of the privilege Issues have probably all ready been disclosed to the

government 2. The therapist’s conclusions as to the

patient’s condition may be important to the resolution of the underlying issues

Exceptions: Psychotherapist/Court Interesting case:

Juvenile court referral for counseling does not constitute court-ordered examination of patient by psychotherapist within meaning of exception to the psychotherapist-patient privilege. In re Eduardo A. (1989) 209 Cal.App.3d 1038

Exceptions: Crime/Tort

3. Commission of crime or tort: No privilege if the psychotherapist’s services were

sought or obtained to enable or aid anyone to commit or plan to commit a crime or tort, or to escape detection or apprehension after the commission of a crime or a tort. California Evidence Code § 1018


Interesting case: Rademan v. Superior Court (2001) 86 Cal. App. 4th 447. Facts:

Underlying law = Medical Practice Act, which makes it illegal to prescribe controlled substances without good medical reason, to excessively prescribe controlled substances, to prescribe controlled substances to an addict, and to treat migraine headaches in violation of the Intractable Pain Treatment Act

Dr. Rademan had two patients D.B. and W.N.


Facts: Ms. Lalich was a pharmacist with Walgreens Patient W.N. admitted to Lalich that he was a drug

addict, yet he had been prescribed Tylenol #4 and Vicodin ES by Dr. Rademan

Lalich calls Rademan to see if the prescriptions are legitimate, and he says they are

Lalich tells Rademan that W.N admitted to being a drug addict

Rademan tells Lalich to give W.N. what he wants


Facts: Lalich refuses to fill the prescriptions Another Walgreens pharmacist, Gardner, told the

Medical Board that she had told Rademen that patient D.B. had been getting prescriptions for the same medicine from other providers, but Rademan told her to keep filling D.B.’s prescriptions

On November 5, 1998, Lalich files a complaint against Rademen with the Medical Board of California


Facts: A doctor with the Medical Board’s enforcement

unit stated that he would have to see the patient’s medical records to determine whether and why these substances were medically indicated.

Both W.N. and D.B. refused to sign authorizations consenting to the disclosure of their medical records

When served with a subpoena duces tecum, Rademan asserted the psychotherapist-patient privilege


Facts: The Medical Board then filed a petition to enforce

its subpoena Rademan filed an opposition to the petition The trial court ruled that the Medical Board was

entitled to the patient records Rademan then files an application for writ of

mandate or prohibition directing the trial court to vacate the order


Key questions: Does the trial court’s order violate the

psychotherapist-patient privilege? Is there an exception to the privilege that comes

into play? Whose criminal activities?

Patient’s? Psychotherapist’s?

Rademan contends that the emphasis is on the patient’s motives for coming to treatment, so this statute only applies TO PATIENTS


The Court’s decisions: 1. The crime/tort exception to the

psychotherapist-patient privilege applies to crimes committed by the psychotherapist, patient, or both.

2. The pharmacists’ declarations provide prima facie evidence of a crime sufficient to justify in camera review of the patient records by the trial court

Exceptions: Breach of Duty

4. Breach of duty arising out of the psychotherapist-patient relationship: No privilege as to a communication relevant

to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship. California Evidence Code § 1020

No reported cases!

Exceptions: Dangerous Patient 5. The dangerous patient exception:

No privilege if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be: Dangerous to himself, or to the person or property of

another, AND That disclosure of the communication is necessary to

prevent the threatened danger. California Evidence Code § 1024

Exceptions: Dangerous Patient An issue of privilege and confidentiality

revisited! Confidentiality: see now California Civil Code

§ 56.10(c)(19) The information may be disclosed, consistent with

applicable law and standards of ethical conduct, … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

Exceptions: Dangerous Patient The dangerous patient exception:

Key questions to answer: Why do I believe my patient is dangerous?

I think my patient is dangerous because … Think back to the “baby” case from Part I

Is it necessary to contact a third party to prevent harm?

Keep in mind that the reporting of child, elder, or dependent adult abuse is also an exception to the psychotherapist-patient privilege!


What kind of

witness are you?

Witness?

3 TYPES of WITNESSES: Percipient aka Fact: Retained-expert: The hybrid:

Treating-Expert aka Percipient-Expert

Witness?

Percipient or Fact witness: Through the SENSES

Saw? Heard? Touched?

Another approach: If the examination involves only the reading of words and symbols in a treatment record and no opinion about diagnosis, prognosis, or treatment justification, only statutory witness fee must be paid

CCP § 2020(f); Government Code § 68093

Witness?

Percipient or Fact witness: Lucky you! For civil actions, you get:

$35 per day and $.20 per mile for miles actually traveled, both ways

For grand jury testimony, you get: $12 per day and $.20 per mile for miles actually traveled, both ways

Government Code § 68093

Witness?

Retained Expert: Retained by one party in a lawsuit to give opinion

testimony regarding the standard of care You MUST AGREE to being used as this type of a

witness!

Witness?

Treating-expert aka percipient-expert: A non-party treating therapist who is asked to

express: Opinion testimony, or Factual testimony regarding the past or present

diagnosis or prognosis made by the therapist, or is asked the reasons for a particular treatment decision must be: PAID AS AN EXPERT WITNESS!

CCP § 2034.430(b)

Witness?

Treater versus Expert, Some Clinical and Legal differences:

The treater has a clinical relationship with the patient The expert does not

The treater places the patient’s welfare above his or her own The expert does not

The treater is under a duty of confidentiality The expert is not

The treater empathizes with the client The expert does not

Witness?

Money, Money, Money The therapist’s reasonable and customary hourly

or daily fee must be paid: For any time spent by the therapist from the time

specified in the deposition subpoena or From the time of the arrival of the therapist should that

be later than that specified in the subpoena Until the therapist is dismissed from the deposition,

whether or not the therapist is actually examined by any party CCP § 2034.430(b)

Witness?

Money, Money, Money If the lawyer is late to the deposition, “ching-ching”

for the therapist CCP § 2034.430(b)

Is the lawyer requiring you to be available for a whole day? ASK! Yes = demand a whole day’s fee No = demand at least a half a day’s fee

Witness?

Money, Money, Money Timing of the payment

Payment must accompany the subpoena or be paid at the commencement of the proceeding! CCP § 2034.450; Government Code § 68092(a)

No money = No testimony, unless YOU agree otherwise!

Witness?

Money, Money, Money If the examination of the witness TAKES

LONGER than anticipated, the party giving notice of the proceeding MUST pay the balance of the expert’s fee within five days of RECEIPT of an ITEMIZED STATEMENT from the expert CCP § 2034.450(c) and Government Code § 68092.5(a)

Witness?

Percipient-Expert aka Treating-Expert? 1. Did you SMELL alcohol on the patient’s

breath? 2. Did the patient SAY he was not taking his

medication? 3. Is the patient DEPRESSED? 4. Was the patient’s APPEARANCE unkempt? 5. Why do YOU BELIEVE your patient is

depressed?

Witness?

Percipient-expert aka treating-expert? 6. Why did you REFER your patient to a

psychiatrist? 7. Did the child CRY when daddy’s name was

mentioned? 8. Why did YOU see your patient two times a

week instead of only one time per week? 9. Will your patient RECOVER from his

depression?

Witness?

Random Thoughts on Testifying: Testifying = “Dentistry without anesthesia”!

Deposition or courtroom? Whose lawyer wants to talk? What kind of witness am I? Don’t be a double agent! The Power of the Dependent Clause! Remember, YOUR immersion in YOUR client’s

experience does not mean YOU have actual knowledge of that experience.

Witness?

Random Thoughts on Testifying: Primum non nocere! Deposition = It is not just a conversation; it is an

examination! Listen! It is ok to take time to collect your thoughts and

to say I don’t understand the question. Don’t guess! If you don’t know, you don’t know!

AND IT IS OK TO SAY YOU DON’T KNOW OR YOU DON’T REMEMBER!

Witness?

Random Thoughts on Testifying: Beware of the words “never” and “always”! Don’t allow the lawyer to misquote you!

“Your previous testimony …” “Do you remember …”

“Dress shabbily, they notice the dress; dress impeccably, they notice the woman.” Coco Chanel

Establishing and Maintaining Proper Boundaries

A Fork in the Road

Establishing and Maintaining Proper Boundaries A different approach; a didactic story This material is taken from the following

article: Slippery Slope: Violating the Ultimate Therapeutic

Taboo by “Susan Rowan,” www.psychotherapynetworker.com/populartopics/ethics/505

Establishing and Maintaining Proper Boundaries Susan’s Story (circa 1990’s):

Throughout Susan’s childhood, her mother had been ill with rheumatic heart disease and died when Susan was 18 years-old.

Susan’s sister, who was 20 years older than Susan, had been Susan’s surrogate mother and had paid for college and graduate school

Ultimately, Susan became an LCSW and was a well-respected clinician at a psychiatric hospital in the Midwest.


She practiced for many years, and considered herself to be a caring and conscientious therapist, one completely dedicated to her patients.

Susan had been taught to “pooh-pooh” psychodynamic notions like transference and counter-transference.

She had never taken a course in professional boundaries or ethics, or been in therapy.


She had recently ended a 10-year relationship with another woman.

She was depressed, numb, and disconnected, and was drinking alone at night.

Her work provided her only emotional sustenance. The inpatient unit was fascinated with childhood

trauma and Multiple Personality Disorder, and the clinicians there believed they were the only ones who could help kids with these problems.

Establishing and Maintaining Proper Boundaries Susan’s Story:

Cara, an “attractive” mother of twin boys, had been hospitalized following a suicide attempt.

Susan was assigned to do marital therapy with Cara and her husband.

Susan found Cara to be bright, sensitive, and a talented artist.

Cara had also been abused physically as a child. Because of the number of abuse stories she

heard, Susan had nightmares about kids being abused.


Cara had been diagnosed with DID, and Susan found Cara’s diagnosis intriguing.

Susan extended the time for her preparation with Cara before the marital therapy sessions.

Susan and Cara took long walks on the hospital grounds.

Susan was protective of Cara and doubted the competence of the hospital staff to prevent her from harming herself.


Susan left her family therapy supervisor and began working under a psychiatrist who specialized in trauma.

This psychiatrist confessed to Susan that he had had an affair with a patient, but that he thought it was ok to do so because Jung and Rank had had affairs with their patients too.


Four months into therapy, Cara found out that her husband had had an affair and her marriage ended.

Shortly thereafter, Cara was discharged and Susan’s work with Cara at the hospital ended.


One week later, Cara called Susan, while Susan was working, to discuss a personal problem and Susan took the call.

In time, Susan gave Cara her “beeper” number and within a couple of months they were talking on the telephone daily.

One day Cara called in a panic because she did not have any money to buy food for her children, so Susan called social services on Cara’s behalf.


A month later, after taking an “alarming, drugged-sounding” call from Cara, Susan rushed to Cara’s house, finding her lying in a pool of blood. Cara’s injury was the result of a self-inflicted wound.

After summoning an ambulance, Susan stayed to clean up the blood so that Cara’s children would not be traumatized by the scene when they returned home after daycare.


A few weeks later, Cara asked Susan for money for groceries. Susan was hesitant to give Cara money, but Susan did buy Cara 5 bags of groceries, believing she was helping Cara, just until Cara could make it on her own.

Then, Cara asked for money for rent and utilities, which Susan paid, believing she was helping Cara, just until Cara could make it on her own.

In return for Susan’s financial support, Cara gave Susan pictures she had drawn.


Susan and Cara exchanged letters; discussed intimate thoughts about society, people, and relationships; had lunch together; played tennis together; took an art class together.

Susan found an apartment for Cara and her children, and even paid the increased rent on the unit.

Susan found herself becoming more and more attracted, in a romantic way, to Cara.


Susan and Cara consumed alcohol together; they kissed and ultimately had a “few tentative sexual encounters,” but decided to just remain friends without sexual intimacy.

Susan drove Cara to some of Cara’s therapy sessions and babysat Cara’s kids when Cara was away.

Ultimately, Susan contributed almost $40,000 to supporting Cara and her children.


Cara became more and more demanding, and Susan became more and more depressed.

When Susan stopped returning Cara’s telephone calls, Cara became increasingly angry, once leaving a message on Susan’s answering machine saying that she could “ruin” Susan.

Finally, depressed and on the edge of financial ruin, Susan tells Cara that she is going to end all contact and financial support in 2 months.


On that “2 month date,” Cara was back in the hospital and informed the hospital about her and Susan’s sexual relationship.

Cara’s complaint was investigated by the hospital, and Susan told the truth about her relationship with Cara.

Ultimately, Susan lost her job, her reputation as a clinician, and her license for two years.


After, Susan and Cara’s relationship ended, Cara continued to cut herself and had even less confidence in herself than she did when she first met Susan.

Cara had no hope for the profession helping her. So, you tell me, where did Susan go wrong?

Establishing and Maintaining Proper Boundaries Susan’s Allocution:

“I realize that some therapists reading this may feel sympathetic towards me, that I tangled naively with the sort of boundary-less client that we are frequently warned against. But the responsibility lies with me.

It was my responsibility, not hers, to know my profession’s norms and to preserve clinical boundaries.

Establishing and Maintaining Proper Boundaries Susan’s Allocution:

It was my responsibility to understand the power between a client and a therapist is never equal and that a so-called friendship is never appropriate after clinical work.

It doesn’t matter how provocative, vulnerable, or seductive a client is, it is my responsibility not to create pathological dependencies.” “Susan Rowan”


Nuts & Bolts of Subpoenas

Types of Subpoenas

The Million-Dollar Question! Is the patient WAIVING or ASSERTING the

psychotherapist-patient privilege? The “good” lawyer versus the “bad” lawyer What does the patient’s lawyer think?

Get an authorization to discuss! Remember, you have an obligation to testify

truthfully! Your role is that of an objective, detached

clinician!

Types of Subpoenas

Consider these other issues: This places me in a conflicted relationship with my

client! Dual relationship/standard of care argument California Health & Safety Code § 123115 argument

Testifying/disclosing records may cause my patient to terminate therapy

Would a generalized description of the therapy end your involvement?

How about just “participation and progress”?

Types of Subpoenas

Get authorization, but there are some other things to review with the patient’s attorney: Is the patient’s attorney going to bring a Motion to

QUASH the subpoena? Yes? No?

Is the patient’s attorney going to Move the court for a PROTECTIVE ORDER? Yes? No?

Types of Subpoenas

Don’t just let sleeping dogs lie, i.e., DO SOMETHING HELPFUL! If they (lawyer or patient) “leave you hanging,” at a

minimum ASSERT the psychotherapist-patient privilege to MAINTAIN the patient’s privacy rights! Key case: Inabnit v. Berkson (1988) 199 Cal. App. 3d

1230 “The failure of the plaintiff to take any action whatsoever to

claim the psychotherapist-patient privilege constituted a waiver of the privilege.”

Types of Subpoenas

Have you been PERSONALLY SERVED with a Subpoena? Don’t EVER go on vacation! California law requires a subpoena to be served

PERSONALLY! California Code of Civil Procedure § 1987

Don’t believe me?

Types of Subpoenas

In re Edward Abrams (1980) 108 Cal. App. 3d 685: Abrams is a medical doctor; Bernbrock is his

attorney A party to a lawsuit attempted to serve Abrams

with a subpoena for testimony in a civil action on January 21

The process server took the subpoena to Abrams’ medical office, but he was not there

Abrams’ secretary tells the process server to serve Bernbrock (substituted service)

Types of Subpoenas

In re Edward Abrams (1980) 108 Cal. App. 3d 685: The process server goes to Bernbrock’s office,

and Bernbrock takes the paperwork, but he tells the process server that he cannot accept service on behalf of Abrams.

Bernbrock writes a letter to the lawyer who issued the subpoena, saying he got it but he is not accepting service on Abrams’ behalf

Abrams did not show up at the hearing on January 21

Types of Subpoenas

In re Edward Abrams (1980) 108 Cal. App. 3d 685: The lawyer who issued the subpoena institutes

contempt charges against Abrams Abrams is served with these papers Abrams testified at the contempt hearing that he

was never served with the original subpoena The trial court found that Abrams had been

served with the subpoena because his lawyer accepted the papers as Abrams’ lawyer

Types of Subpoenas

In re Edward Abrams (1980) 108 Cal. App. 3d 685: Abrams was found to be in contempt of court His punishment:

Four days in the county jail, or spend four consecutive Thursdays in the courthouse from 9:00 a.m. until 4:00 p.m., observing a trial, so that he can be “informed of the operation of the American judicial system”

$500 in fines $500 in compensation to the other attorney Sound fair?

Types of Subpoenas

In re Edward Abrams (1980) 108 Cal. App. 3d 685: Abrams didn’t think so He appeals the court’s decision, and the issue on

appeal is whether it is valid to “substitute service” a non-party witness?

The Court of Appeal says “NO”; the witness must be personally served with the subpoena!

Why?

Types of Subpoenas

In re Edward Abrams (1980) 108 Cal. App. 3d 685: California law requires “STRICT STATUTORY

COMPLIANCE” with the requirements for service of original process

CCP § 1987 requires PERSONAL SERVICE of the subpoena

The service of the subpoena on the witness is an original exercise of JURISDICTION over the witness

Types of Subpoenas

In re Edward Abrams (1980) 108 Cal. App. 3d 685: The penalty for disobeying a subpoena is serious,

i.e., fines and imprisonment, so the law wants to make sure that the witness really received the paperwork

Types of Subpoenas

The concept of PERSONAL SERVICE: Personal service means ACTUAL DELIVERY of

the papers in person If the witness is FLEEING, the papers can be

THROWN at him or her WHILE TELLING the witness what the papers are

The papers can be PLACED under the windshield wipers of a retreating automobile

Serving wife, as substitute for husband, who was 100 feet away from wife, was not personal service

Types of Subpoenas

The concept of PERSONAL SERVICE: Chapman v. Superior Court (1968) 261 Cal. App.

2d 194: Service on a doctor’s receptionist, who was not the

practice’s custodian of records, was not PERSONAL SERVICE on the doctor!

Since the doctor was not personally served, he could NOT be held in contempt for not appearing at a hearing

Types of Subpoenas

The concept of PERSONAL SERVICE: Sternbeck v. Buck (1957) 148 Cal. App. 2d 829

Service on your husband or wife at your residence is not personal service!

Types of Subpoenas

The concept of PERSONAL SERVICE: Good idea to evade service?

Not usually A court may order a sheriff to break and enter a building

or vessel to serve a subpoena. The subpoenaing party must provide a declaration showing that the witness is concealed therein and the materiality of the witness’ testimony. CCP § 1988

Types of Subpoenas

The concept of PERSONAL SERVICE: Think you are safe at home?

Guards at gated communities must allow a peace officer or licensed process server, upon proper identification, access for the purpose of serving a subpoena. CCP § 415.21

Types of Subpoenas

For the record: Attorneys can SIGN and ISSUE subpoenas, but

they have to use the approved forms For example, see CCP § 2020.210(a)-(b)

DEFICIENCES in the PROCESS, whether in the PREPARATION of the subpoena or the SERVICE of the subpoena, INVALIDATE the subpoena! The proverbial “FORK IN THE ROAD”!

Go with the flow? Rock the boat?

Types of Subpoenas

What kind of subpoena have you been served with? The Big Six 1. Deposition Subpoena for Personal

Appearance 2. Deposition Subpoena for Production of

Business Records 3. Deposition Subpoena for Personal

Appearance and the Production of Business Records

Types of Subpoenas

What kind of subpoena have you been served with? 4. Civil Subpoena for Personal Appearance

at Trial or Hearing 5. Civil Subpoena (Duces Tecum) for

Personal Appearance and Production of Documents at Trial or Hearing

6. Subpoena (Criminal or Juvenile)

Types of Subpoenas

The Deposition Subpoena for Personal Appearance. Details: 1. Served PERSONALLY on the therapist

(CCP § 2020.220(b)). 2. Served in SUFFICIENT TIME in advance

of the time to testify to allow the therapist a reasonable time to travel to the place of the testimony (CCP § 2020.220(a)).

Types of Subpoenas

Details: 3. PLACE of the deposition:

Either within 75 miles of your residence, or In the county where the action is pending at a place

within 150 miles of your residence CCP § 2025.250(a)

Types of Subpoenas

The Deposition Subpoena for Production of Business Records. Details:

1. Served PERSONALLY on the therapist or organization

(CCP §2020.220(b)).

Types of Subpoenas

Details: 2. Served in such a time as to command

compliance NO sooner than twenty (20) days after the subpoena was issued, OR fifteen (15) days AFTER service, whichever is later

(CCP §2020.410(c)).

Types of Subpoenas

Details: 3. Served AT LEAST five (5) days after the

subpoena and a “Notice to Consumer or Employee and Objection” form has

been served, either personally or by mail, on the patient

(CCP §1985.3).

Types of Subpoenas

Hypothetical: Rule: Twenty (20) days after ISSUANCE or

fifteen (15) days after SERVICE, whichever is later, and at least five (5) days after subpoena and “Notice to Consumer” has been served, either personally or by mail, on the patient

Example: Subpoena issued: January 1, 2008 Subpoena + Notice served on patient: January 3, 2008 Subpoena served on therapist: January 10, 2008 Records demanded: January 21, 2008

Types of Subpoenas

Details: 4. Accompanied by a WRITTEN RELEASE

from the patient, or PROOF the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form

(CCP §2020.410(d)).

Types of Subpoenas

Details: 5. Accompanied by witness FEES ($15)

allowed by law (California Evidence Code §§ 1563(b)(6) and CCP

§2020.230(b)).

Types of Subpoenas

The Deposition Subpoena for Personal Appearance and the Production of Business Records. Details:


(CCP §2020.220(b)). 2. Served in SUFFICIENT TIME in advance

of the time to testify to allow the therapist to locate and produce records and a reasonable time to travel to the place of the testimony

(CCP §§ 1985.3(d), 2020.220(a)).

Types of Subpoenas

Details: 3. Served at least five (5) days AFTER the

subpoena and a “Notice to Consumer or Employee and Objection” form has

been served, either personally or by mail, on the patient

(CCP §1985.3(b)(3)).

Types of Subpoenas


from the patient, or proof that the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form

(CCP §§ 1985.3(c) and 2020.410(d)).

Types of Subpoenas

Details: 5. There is no requirement that a check for

fifteen (15) dollars accompany this subpoena.

Witnesses served with this subpoena must generally demand witness fees and mileage reimbursement from the subpoenaing party, who may elect to pay such fees at the time of the deposition.

Types of Subpoenas

The Civil Subpoena for Personal Appearance at Trial or Hearing. Details:


(CCP § 1987(a)). 2. Accompanied by the fee and mileage for

one day’s appearance, IF DEMANDED by the therapist as a witness

(CCP § 1987(a))

Types of Subpoenas

Details: 3. Served in SUFFICIENT TIME in advance

of the time to testify to allow the therapist a reasonable time for preparation and travel to the place of the testimony

(CCP § 1987).

Types of Subpoenas

Details: 4. Place of deposition: NO geographical

limitation on this kind of subpoena! CCP § 1989 Plead hardship to subpoenaing attorney and request

that your deposition be taken by videotape!

Types of Subpoenas

The Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents at Trial or Hearing. Details:

1. Served PERSONALLY on the witness, i.e., the therapist or organization

(CCP § 1987(a)). 2. Served in SUFFICIENT TIME in advance

of the time to testify to allow the therapist a reasonable time for preparation and travel to the place of the testimony

(CCP § 1987(a)).

Types of Subpoenas

Details: 3. Accompanied by an AFFIDAVIT or

DECLARATION specifying the exact matters to be produced, their materiality to the issues in the case, facts constituting good cause for their production, and that the witness has such documents in his or her possession or under his or her control

(CCP §1985).

Types of Subpoenas


from the patient, or proof that the patient has been served with copies of the subpoena and the “Notice to Consumer or Employee and Objection” form

(CCP §§ 1985.3(c) and 2020.410(d)).

Types of Subpoenas

Details: 5. There is NO requirement that witness fees

accompany this subpoena. The witness fee, which is $35 per day for percipient

witnesses, and the mileage fee, which is $.20 per mile to and from the courthouse, should be demanded by the witness at the time of service

(CCP § 1987(a))

Types of Subpoenas

The Subpoena (Criminal or Juvenile). Details:

1. Witness and mileage fees are allowed and SHOULD BE SOUGHT from the attorney who issued the Subpoena

(California Penal Code §1328(b))

Types of Subpoenas

Details: 2. Served PERSONALLY on the therapist or

organization by any person other than the defendant in a criminal action or delivered to the therapist by mail or messenger if, and only if, the therapist “acknowledges” receipt of the subpoena by

contacting the attorney who issued the subpoena, either by telephone, by mail, or in person, and

giving such attorney the therapist’s date of birth and driver’s license number (California Penal Code §1328d).

Types of Subpoenas

Details: 3. Served AT LEAST five (5) days before any

records are required to be produced (California Penal Code §1326(b) and California

Evidence Code §1560(b)(1)).

The Psychotherapist-Patient Privilege “Hey dad, let’s play catch!”

1. There is no privilege because this is an administrative subpoena from the BBS.

2. There is no privilege because Mr. Smith, although meeting with you, never paid for any sessions.

3. There is no privilege because the kid is a dependent child.

4. There is no privilege because he told his wife about his depression.


5. You cannot assert the privilege because you are only a therapist.

6. You were served with a civil subpoena today and the trial is tomorrow.

7. There is no privilege because pain is a mental phenomenon, which means your client is making an issue of a mental condition because he is suing for pain and suffering.


8. There is no privilege because there is an “automatic” waiver of the privilege whenever a patient files a lawsuit.

9. There is no privilege because your client told her coworkers about her depression.

10. I’m subpoenaing you as a percipient witness and I want to question you about your treatment decisions for this patient.

Relax & Play!