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State Ex Rel. Mapes v. District Court10/30/1991
court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper."
We consider the circumstances in this case appropriate for the exercise of the Supreme Court's supervisory control. Defendant's right to discover plaintiff's mental or physical condition is based on fairness where that mental or physical condition is placed in issue by a claim for damages. However, defendant's need for that discovery must be balanced by plaintiff's constitutional right to privacy found in Mont. Const. Art. II, ยง 10. Defendant's needs must also be balanced against plaintiff's statutory right to confidential relations with his psychologist. Section 26-1-807, MCA, places plaintiff's relations with his psychologist "on the same basis as provided by law for those between an attorney and his client." Once confidential communications have been disclosed or publicized, the damage cannot be undone on appeal. Therefore, as in U.S.F.& G., we conclude that issuance of the writ is necessary in this case.
II.
Are records of psychological therapy received by the plaintiff since 1986 discoverable in this personal injury action commenced in 1989?
Section 26-1-807, MCA, establishes the following privilege:
"Psychologist-client privilege. The confidential relations and communications between a psychologist and his client shall be placed on the same basis as provided by law for those between an attorney and his client. Nothing in any act of the legislature shall be construed to require such privileged communications to be disclosed."
However, the confidentiality of communications between a patient and his psychologist can be waived like any other privilege. When a party claims damages for physical or mental injury , he or she places the extent of that physical or mental injury at issue and waives his or her statutory right to confidentiality to the extent that it is necessary for a defendant to discover whether plaintiff's current medical or physical condition is the result of some other cause. However, in balancing plaintiff's right to confidentiality against the defendant's right to defend itself in an informed manner, we conclude that the waiver is not unlimited. Defendant is entitled to discover prior physical or mental conditions which may relate to the damages being claimed in the current action, but is not entitled to unnecessarily invade plaintiff's privacy by exploring totally unrelated or irrelevant matters.
We, therefore, limit the extent to which defendant, in this case, may discover or use information or records gathered by Lawrence Jarvis, Ph.D., in the course of his psychologist and patient relationship with plaintiff.
Defendant may depose Dr. Jarvis for the purpose of determining whether in his opinion plaintiff suffers from any cognitive deficit caused by any factor, other than the conditions of his employment, as alleged in his complaint. If the District Court determines that plaintiff claims any emotional or psychological damage as a result of defendant's negligence, then defendant may also question Dr. Jarvis to determine whether in his opinion plaintiff suffers from any emotional or psychological problems resulting from any factor, other than the causes alleged in his complaint. If Dr. Jarvis answers in the affirmative to either of the preceding areas of inquiry, defendants may question Dr. Jarvis regarding the nature of those other causes and whether he is abl
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