By Joseph A. White
Last month, the Supreme Court of Georgia held that—absent an express waiver by the patient—confidential communications between psychiatrist and patient may not be disclosed, even where the patient is deceased and the patients’ parents seek the records in order to prove that the psychiatrist committed malpractice. Cooksey v. Landry, 2014 WL 2925163 (Ga. June 30, 2014).
In Cooksey, the defendant psychiatrist had prescribed the deceased patient Seroquel and Cymbalta, two drugs with “black box warnings” for increased risk of suicidal thoughts and behavior. After the patient commit suicide, his parents began investigating a potential wrongful death claim based on the psychiatrist’s failure to monitor the patient. They made multiple requests to the psychiatrist for copies of their son’s psychiatric records, all which the psychiatrist denied. The parents moved for an injunction requiring the psychiatrist to turn over the psychiatric records. The trial court granted the parents’ motion, without reviewing the records at issue, and the psychiatrist appealed and filed a motion for an emergency stay.
At issue was Code Section 24-5-501(a), which creates a “privilege” protecting communications between psychiatrist and patient. The privilege protects certain psychiatrist-patient communications from being disclosed on grounds of public policy. The primary public policy behind the privilege is “to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders.”
The Georgia Supreme Court ruled that the lower court erred by ordering the psychiatrist to turn over the records without first reviewing them and quarantining privileged patient-psychiatrist communications. The Court concluded it could not deviate from Code Section 24-5-501, even for a deceased patient’s parents, because Georgia’s General Assembly “has determined that the public policies supporting the creation of a mental health privilege necessitated enactment of a nearly absolute privilege, one without exception if the patient is deceased or the nature of the patient’ mental condition is put at issue.”
While certain jurisdictions authorize a deceased patient’s representative to waive the privilege, the high court’s ruling in Cooksey forbids such waiver, creating great difficulty for plaintiffs pursing wrongful death claims against mental health professionals in Georgia. Cookseymakes clear that this will remain the law in Georgia unless and until Georgia’s General Assembly amends Code Section 24-5-501 to create exceptions to the “nearly absolute [patient-psychiatrist] privilege” that the statute presently creates.