Anyone who loses a loved one, or who suffers severe injuries in an accident, can be expected to experience difficult emotions for a period of time – maybe a long time depending on the extent of the loss. It is not unreasonable or unusual for the injured person or grieving loved one, to seek professional counseling. In many cases, therapy with a professional may be essential to the person’s long-term well-being. When a person enters therapy, it is not always obvious where the process will lead. Thoughts and experiences of the most intense and personal nature may be revealed to the therapist, details that most of us would not want shared with strangers, and certainly not a defense lawyer or insurance adjuster.

The question thus arises, if the injured person sues the corporation or individual who caused his loss, whether the defense will have access to psychotherapy records as part of the discovery in the personal injury lawsuit. In other words, does filing the lawsuit cause the plaintiff to waive the usually tight privilege that applies to the psychotherapist/patient relationship. The short answer is “no,” provided that the plaintiff’s attorney takes care to write a Complaint that states explicitly that damages are being sought only what the law calls “garden variety” emotional harm, and not a diagnosable mental condition.

If the plaintiff claims that the injury or loss caused a clinical depression or post traumatic stress disorder or some other diagnostically significant condition, then the defense will have the right to obtain psychiatric or therapeutic records. If, however, the plaintiff is simply seeking compensation for the emotional trauma that will be expected from a life-altering or catastrophic injury, the patient/therapy records are protected. The situation is even clearer in a wrongful death case, where according to Massachusetts case law, while damages are available for the value of the loss of the relationship to the deceased (an obviously subjective and difficult value to assess), emotional suffering is not compensable under the wrongful death statute. While the line between loss of a relationship and emotional suffering is a vague one, the legal distinction is important if therapy records are sought by the defense.

When the defense seeks therapy records, the plaintiffs lawyer must object and seek a protective order, which should be allowed if the judge knows or is adequately informed about the law. What if the judge gets it wrong and orders the privileged turned over. The remedy is to seek an appeal before the single justice session of the Massachusetts Appeals Court. While the Appeals Court has cautioned lawyers not to appeal routine discovery orders, which are in the near total discretion of the trial judge, issues of privilege may be appealed, as they are matters of law. If the judge erred, the single judge of the Appeals Court should reverse the order and protect the therapist-patient privilege. The courts of Massachusetts and other jurisdictions have stated loudly and clearly that there is an important social benefit in enabling injured people to seek professional help without fear that their most intimate thoughts will be revealed.

I wrote this article because a colleague recently came to me for assistance in a situation where a trial judge did make a mistake and ordered confidential therapy records turned over. The lawyers handling his personal injury case are now trying to right the situation. When I draft a complaint for a personal injury or wrongful death client, I state in plain English, that the plaintiff is seeking only damages for “garden variety” emotional distress, or in a death case, only damages for the elements listed in the Wrongful Death Act, and not any mental illness or extraordinary mental condition.