2005-596, LINDA DESCLOS v. SOUTHERN NEW HAMPSHIRE MEDICAL CENTER & a.

access to her psychiatric and psychological records. We vacate and remand. Hampshire Medical Center, James F. Carroll, M.D., and Nurse Jane Doe, from a Superior Court (Groff, J.) order granting the defendants, Southern New GALWAY, J. The plaintiff, Linda Desclos, brings this interlocutory appeal

New Hampshire Trial Lawyers Association, as amicus curiae. Burns, Bryant, Cox, Rockefeller & Durkin, P.A., of Dover, by brief, for the

H. Nelson on the brief, and Mr. Lehman orally), for the defendants. Sulloway & Hollis, P.L.L.C., of Concord (Michael P. Lehman and Margaret

M. Leach on the brief and orally), for the plaintiff. Nixon, Raiche, Manning, Vogelman & Leach, P.A., of Manchester (Kevin Errors may be reported by E-mail at the following address:

SOUTHERN NEW HAMPSHIRE MEDICAL CENTER & a.

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-596 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as separate emotional distress damages, specifically to avoid waiving her privilege.

challenge Desclos’ reliability in reporting symptoms. and loss of enjoyment of life. They also argue that they need the records to to respond to the damage claims of pain and suffering, loss of earning capacity, unreasonable to the prejudice of her case. psychotherapist-patient privilege.”

standard. the admissibility of evidence under an unsustainable exercise of discretion claim for intentional or negligent infliction of emotional distress, nor claimed caused by the medical negligence alleged. She notes that she neither brought a simply by claiming generic damages that are likely to arise from the injuries damage and liability claims. records of her psychiatric history prior to the injury would be relevant to her at 561. records created prior to her injury is necessary, the defendants argue, for them In re Juvenile p. 2 2002-209, 149 N.H. must demonstrate that the trial court’s rulings were clearly untenable or claim [for loss of enjoyment of life and pain and suffering,] she has waived the Petition of Haines, 148 N.H. 380, 381 (2002). To meet this standard, Desclos disturb the trial court’s order absent an unsustainable exercise of discretion.

In re Juvenile p. 2 2002-209, 149 N.H. 559, 561 (2003). We will not

We review a trial court’s decisions on the management of discovery and

psychotherapist-patient privilege, and that she did not waive the privilege

Desclos had released her psychological records created after the injury, the obtain evidence relevant to their defense. Discovery of Desclos’ mental health privacy rights in her mental health records against the defendants’ need to reconsider, the trial court further ruled that “by the nature of the plaintiff’s The defendants argue that the trial court properly balanced Desclos’

On appeal, Desclos argues that the trial court’s order violates the

records created before August 18, p. 2 2003. Their motion stated that, although

enjoyment of life. the discovery of admissible evidence.” In denying Desclos’ motion to suffering and loss of enjoyment of life, and are reasonably calculated to lead to records are clearly relevant to the issue of damages in regard to pain and The trial court ruled: “The plaintiff’s psychiatric and psychological

The defendants sought all of Desclos’ psychiatric and psychological

damages including pain and suffering, loss of earning capacity, and loss of result, the suit alleged, Desclos suffered irreversible quadriplegia. She claimed defendants who failed to recognize her symptoms of spinal cord injury. As a negligence, alleging that, on August 18, p. 2 2003, she sought treatment from the The record reveals the following facts. Desclos brought a suit for medical standard, stating:

p. 3 patients of confidentiality and, indeed, privileged communication. for a psychotherapist to function without being able to assure

court used, but the rule specifically exempts privileged material from that evidence.” Superior Court Rule 35(b)(1) sets forth the standard that the trial and were “reasonably calculated to lead to the discovery of admissible

necessary for successful treatment. It is difficult if not impossible

issue of damages in regard to pain and suffering and loss of enjoyment of life,” disclosure is required by a court order. any such privileged communications to be disclosed, unless such client, and nothing in this chapter shall be construed to require disclosure may impede development of the confidential relationship health counseling and treatment. . . . The mere possibility of accomplished when individuals are able to seek effective mental

Desclos’ psychiatric and psychological records were “clearly relevant to the production of the records for pretrial discovery. The trial court stated that court applied the “relevance” standard to determine whether to compel Despite the privileged nature of the communications at issue, the trial the same basis as those provided by law between attorney and

330-A:32 and New Hampshire Rule of Evidence 503(b). clients, the therapist-client privilege advances the public good defendants in the instant case are privileged communications pursuant to RSA citations omitted). Neither party disputes that the records sought by the In the Matter of Berg & Berg, 152 N.H. 658, 665 (2005) (quotations and

mental health practitioner] and such licensee’s client are placed on

By fostering productive relationships between therapists and their

psychotherapist-patient privilege: See also N.H. R. Ev. 503(b). We recently emphasized the importance of the

rational means for ascertaining truth.

capable of giving.

The confidential relations and communications between [a licensed

(2004), which states, in pertinent part: Hampshire has codified the psychotherapist-patient privilege in RSA 330-A:32 some available probative evidence. Id. at 9-10; Strong, supra § 72. New privileges promote sufficiently important interests to justify the sacrifice of

justified by a public good that transcends the general principle of using all McCormick on Evidence § 72, at 298-99 (5th ed. 1999). Such exceptions are

privileges are exceptions to the general duty to give all testimony that one is At issue in this case is the psychotherapist-patient privilege. Evidentiary putting his or her emotional or mental condition “at issue,” p. 4 held that a plaintiff impliedly waives the psychotherapist-patient privilege by

information to establish the elements of the case.”

earning capacity, and pain and suffering. Courts in other jurisdictions have

stated that a plaintiff may impliedly waive the attorney-client privilege by plaintiff may impliedly waive the psychotherapist-patient privilege, we have N.H. 359, 370 (1995) (quotations and ellipsis omitted). Since our law places Aranson v. Schroeder, 140 client privilege as to that information or be prevented from using the privileged resolution of the issue, the privilege-holder must either waive the attorneymaterial into the case “such that the information is actually required for Id. When a party asserting the attorney-client privilege injects privileged in which the privilege-holder injects the privileged material itself into the case.” the extent of an at-issue waiver of the attorney-client privilege to circumstances patient privilege by claiming damages for loss of enjoyment of life, loss of have additionally qualified waiver of the attorney-client privilege by “limit[ing]

87 P.3d 858, 863 (Colo. 2004). Though we have never explicitly held that a disclosed. her mental condition into the case,” e.g., Hoffman v. Brookfield Republic, Inc., Cunningham, 182 S.W.3d 561, 567 (Mo. 2006) (en banc), or by “injecting his or Chubb Corp., 193 F.R.D. 216, 225 (D. N.J. 2000); State ex rel. Dean v.

The defendants argue that Desclos impliedly waived her psychotherapist-

I. Waiver

the standard for determining whether or not privileged materials should be in turn. privilege, State v. Elwell, 132 N.H. 599, 605 (1989). We address each method Dean, 142 N.H. 889, 890 (1998); or (2) the court orders a piercing of the admissible evidence. Petition of Generally, there are two means by which disclosure of privileged

2005); R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994). Bennet, Wells & McDonnell, P.C. v. Panico, 869 A.2d 653, 659-660 (Conn. Cir. 1994); Alcon v. Spicer, 113 P.3d 735, 741 (Colo. 2005); Gould, Larson,

Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d

incorrect standard for discovery of privileged material. Relevance alone is not Super. Ct. R. 35(b)(1) (emphasis added). Accordingly, the trial court applied an

appears reasonably calculated to lead to the discovery of sought will be inadmissible at the trial if the information sought action . . . . It is not ground for objection that the information which is relevant to the subject matter involved in the pending Parties may obtain discovery regarding any matter, not privileged, p. 5 5

the dispute. resolution of the ineffective assistance of counsel claim.

objected, arguing that the physician-patient privilege applied.

revealing that the defendant had a blood-alcohol content of .14 percent.

analysis stands. Because the defendant’s plea did not inherently require patient privilege to exclude blood samples, see RSA 329:26 (2004), our waiver

Id. Although the legislature has since modified the physician-

place the privileged communications between a doctor and a patient at issue in privileged communications into the case such that it was required for Id. at 607. We ruled that the defendant’s plea of not guilty was insufficient to those between himself and his attorney. In this way, the petitioner injected his State countered that the defendant waived the privilege by pleading not guilty. similar issues in the attorney-client and physician-patient contexts. required consideration of the very communications that he sought to protect: Id. at 602. The 601. The State sought to use the blood sample as evidence and the defendant such that they are required for resolution of the issue, we have addressed place psychotherapy communications at issue and inject them into the case challenge the lawyer’s representation of the client.” Id. at counsel go to the core of attorney-client communications. Such claims accident, the defendant went to a hospital, where doctors took a blood sample, assistance of counsel claim because, “Claims of ineffective assistance of homicide due to his involvement in an auto accident. Id. at 601-02. After the Elwell, 132 N.H. at 607. There, the State charged a defendant with negligent the petitioner’s trial counsel. In contrast, we upheld the physician-patient privilege in State v. Elwell.

case. prevented from using the privileged information to establish the elements of the privilege-holder must either waive the privilege as to that information or be

petitioner waived the privilege because the cause of action that he brought

attorney-client privilege by basing his motion for a new trial upon an ineffective

that the petitioner waived his attorney-client privilege and sought to interview ineffective assistance of counsel. Dean, 142 N.H. at 890-91. The State argued In Dean, the petitioner moved for a new criminal trial, claiming

the information is actually required for resolution of the issue, then the

damage claims for pain and suffering, loss of earning capacity, and loss of Desclos impliedly waived her psychotherapist-patient privilege by asserting We must now determine whether the trial court was correct in ruling that

the privilege-holder has injected the privileged material into the case such that communications at issue by injecting the privileged material into the case. If the psychotherapist-patient privilege by putting the confidential privilege, RSA 330-A:32; N.H. R. Ev. p. 5 503(b), we conclude that a party waives the psychotherapist-patient privilege on the same basis as the attorney-client is incident to the physical injury, the privilege will not be waived because the

p. 6 evidence.” generally in the common experience of jurors and do not depend on any expert

privilege-holder also alleges a damage claim for “generic” mental suffering that

required for resolution of the issue.”

an ordinary person would feel in such circumstances. These damages are claim, rather than as a result of a cause of action.

evidence to support the claim.

humiliation, inconvenience, and loss of enjoyment of life. not be required for resolution of the claim. By the same reasoning, if the psychotherapist-patient privilege, by claiming damages for emotional distress, injury, that will not waive the privilege because the privileged information will material to prove the elements of the case. of the psychotherapist-patient privilege brings a cause of action for a physical privilege by bringing a cause of action that requires use of the privileged Aranson, 140 N.H. at 370. When a holder injected privileged material into the case, such that the information is actually privilege, which is that the holder of the privilege waives it when he “has damages of a “generic kind,” meaning “the kind of distress or humiliation that This decision is consistent with our rule on waiver of the attorney-client for the instant case is whether or not to imply a waiver as a result of a damage for emotional distress, she would waive the privilege. Id. by its very nature, would waive the privilege because it would require medical diagnosed mental condition resulting from a negligent act. Id. Such a claim, Id. at 568. In cases of the latter sort, the plaintiff must show a medically plaintiff brings a cause of action for negligent infliction of emotional distress. condition “in issue” or “in controversy,” and thus impliedly waived her with accompanying generic emotional distress damages from cases in which a

Id. The court distinguished the plaintiff’s claim of physical injury the holder of a psychotherapist-patient privilege will impliedly waive the

would not waive her privilege, however, if she sought emotional distress the mental condition in connection with the case). The most helpful distinction Id. at 568. The plaintiff or evidence of medical or psychological treatment to support her damage claim view least likely to find waiver, will do so if the plaintiff makes affirmative use of S.W.3d at 567. The court determined that if the plaintiff used expert testimony

plaintiff bringing a cause of action for sexual harassment placed her mental In Cunningham, the Missouri Supreme Court considered whether a patient context. There is broad agreement in both federal and state courts that

ed. 2006) (stating that the “narrow view” taken by some courts, which is the 568; see also 3 Weinstein’s Federal Evidence § 504.07[8] (J. McLaughlin ed., 2d Chilmark, 174 F.R.D. 225, 230 (D. Mass. 1997); Cunningham, 182 S.W.3d at

Other jurisdictions have similar waiver analyses in the psychotherapist-

the defendant did not waive his privilege. information regarding the blood sample to resolve the issue of his innocence, court for a determination based upon the standard that we have articulated.

p. 7 insufficient detail regarding Desclos’ claims, we vacate and remand to the trial

psychotherapist-patient privilege. Because the record before us contains only generic mental suffering, then such claims would not waive her patient privilege. If, however, the mental suffering that Desclos claims involves

evidence regarding her mental suffering, that will waive her psychotherapist-

stress disorder, or if the claims involve expert testimony or other expert include a clinically diagnosed disorder, such as depression or post traumatic that her pain and suffering, loss of enjoyment of life, or loss of earning capacity

case. We can, however, provide guidance for the trial court. If Desclos claims

psychotherapist-patient privilege by injecting her mental condition into the alleged negligence, we cannot determine whether or not she has waived her the mental suffering that Desclos claims to have experienced as a result of the

between the attorney and client or doctor and patient.

waived her psychotherapist-patient privilege, the trial court may compel information.

description of Desclos’ damage claims. Because we do not know the details of

plaintiff’s claim. If the trial court determines on remand that Desclos impliedly privilege because a resolution of the claim will not require any privileged

incident to the physical claim. The record before us contains no specific only to what is relevant to the plaintiff’s claim.”

scope of such a waiver. In the attorney-client and physician-patient realms, an

privilege extends only to confidential communications that are relevant to the that is incident to a physical injury will not waive the psychotherapist-patient privileges, we conclude that an implied waiver of the psychotherapist-patient psychotherapy sessions. Thus, a damage claim for generic mental suffering Given the similarity between the attorney-client and psychotherapist-patient upon expert evidence, it will not involve any privileged records from Nelson, 130 N.H. at 110. suffering, loss of enjoyment of life, and loss of earning capacity claims were partial. It extends not to all information given in the course of treatment, but Desclos claimed was a physical injury, the mental components of the pain and N.H. 106, 110 (1987); Dean, 142 N.H. at 890-91. “[Implied] waiver is only enjoyment of life, and loss of earning capacity. As the primary injury that Nelson v. Lewis, 130

The final issue that we must address in regard to implied waiver is the

mental suffering is in the jurors’ common experience and does not depend

negligence and claimed damages that included pain and suffering, loss of

ordinary person would experience in similar circumstances. Because generic expert evidence, and does not exceed the kind of mental suffering that an suffering that is in the common experience of jurors, does not depend upon In the instant case, Desclos brought a cause of action for medical

the term “generic” as did the Missouri Supreme Court, meaning mental privileged information will not be required for resolution of the claim. We use inadmissible evidence, such as hearsay evidence.

p. 8 material and relevant to their defense. Such a showing may rely upon

material and relevant to” the party’s defense or claim.

defense, such as the victims’ reliability. reasonable probability that the records they seek contain information that is information, they must make an initial showing sufficient to establish a defendants may argue that they have an essential need for the privileged

“establish a reasonable probability that the records contain information that is to pierce the privilege had to meet before the trial court undertook an

records, because such records may have contained information relevant to his

judicial economy compelling in the instant case, as well. Thus, before the abrogated. Id. at 104. We find the interests of privacy, due process, and camera review and a determination of whether the privilege should be privileged records, however, the party seeking to pierce the privilege must first in showing also established an initial, minimum standard that the party seeking potentially exculpatory information. Id. at 105. The “reasonable probability” treating physician. confidential records and the defendant’s due process interests in obtaining there is a factual dispute regarding what symptoms Desclos described to her probability was necessary to protect both the victims’ privacy interests in the

defendant requested discovery of the alleged victims’ psychotherapeutic 101, 105 (1992). We required such a showing in Gagne, in which a criminal

Before establishing essential need for the information contained in the

436, 442 (2004). disclosure.” In re Grand Jury Subpoena (Medical Records of Payne), 150 N.H. reliability, the defendants argue, is relevant to the issue of liability, because from another source and that there is a compelling justification for its privileged records must prove both that the targeted information is unavailable “essential.” Id. at 415. “To establish essential need, the party seeking the must yield when disclosure of the information concerned is considered Kupchun, 117 N.H. 412, 415 (1977). The psychotherapist-patient privilege maximize the effectiveness of therapy, the privilege is not absolute. State v. encourage trust and disclosure between patient and psychotherapist so as to Though the purpose of the psychotherapist-patient privilege is to

information as to her reliability in reporting her symptoms. This lack of disclosure of Desclos’ psychotherapeutic records because they may provide The defendants next contend that the trial court properly ordered

II. Piercing the Privilege

claims, which may require in camera review. discovery of only those psychotherapeutic records necessary to resolve Desclos’ must argue that such information is unavailable from another source, and the

p. 9 pierce the privilege because the information that they need is essential, they case on the issue of unavailability. If the defendants argue that they may applicable prongs of the unavailability test. Accordingly, we must remand the

inadmissible. The trial court has made no explicit findings on any of the

not argued that any potentially available alternative evidence would be sources that could provide the information that they seek. Further, they have the record that they have made adequate efforts to investigate alternative

alternative sources.

that the defendants seek from Desclos’ psychotherapeutic records is efforts to discover alternative sources of competent evidence.”

fact for the trial court to resolve.

seeking to pierce the privilege has made adequate efforts to investigate

In the instant case, there is no record of whether or not the information the privilege make an offer of proof demonstrating “substantial, good faith

a motion for directed verdict, then it is, for practical purposes, unavailable. investigative efforts to satisfy the third prong is, at least initially, a question of whether or not the party seeking to pierce the privilege has made adequate offer little chance of revealing alternative evidence. Id. The determination as to we will not require the exhaustion of alternative sources of information that the above prongs. burdensome means to acquire such evidence. Id. at 443. On the other hand, privileged information provides the best source of evidence sought or the least explore will not be sufficient. Id. Nor is it sufficient to simply argue that the Conclusory statements that alternative sources are non-existent or futile to a motion for directed verdict, when applicable; and (3) whether the party admissible at trial; (2) whether the alternative evidence is sufficient to overcome Id. at 444. available, we use a three-part test: (1) whether the alternative evidence is The third prong is the most rigorous, requiring that the party seeking to pierce

443. For the second prong, if the alternative evidence is insufficient to survive consider unavailable any alternative evidence not admissible at trial. Id. at

argument, the trial court must make explicit findings and rulings on each of

442. To determine whether a reasonable alternative source of information is privileged information sought must be unavailable from another source. Id. at “essential.” The first requirement of showing essential need is that the they may then argue to the trial court that the information they seek is If the defendants successfully make a showing of reasonable probability,

his injuries). that the defendant’s privileged medical records contained information regarding lacerations and surgery was sufficient to demonstrate a reasonable probability Subpoena, 150 N.H. at 445 (concluding that hearsay evidence of a defendant’s know, for instance, the extent to which deprivation of the privileged information

p. 10 us with insufficient factual detail regarding their fairness argument. We do not

can discern the basic intent of the defendants’ argument, they have provided instant case have made such a showing is unclear from the record. Though we interest to qualify as a compelling justification. Whether the defendants in the

cases. trial is a fundamental constitutional right for parties in both criminal and civil implicates the fairness of trial proceedings. It is well established that a fair

spouse with knowledge from testifying against the perpetrator of such a crime.” issues involved, such a showing would present a sufficiently important public

justification for disclosure of the information. The defendants’ argument

of trust and love between husband and wife to prevent a properly outraged to the privileged information so that there would not be a just resolution of the unconscionable to permit a privilege grounded on promoting communications policy, stating that “Child abuse is a horrendous crime,” and that “[i]t would be

privileged information that could affect their liability presents a compelling

privilege showed that there would be a deprivation of a fair trial without access Inc., 852 F.2d 93, 98 (3d Cir. 1988). Accordingly, if a party seeking to pierce a sexual abuse of a child. We attributed this abrogation of the privilege to public Skidmore, 985 F.2d 354, 357 (7th Cir. 1993); Bailey v. Systems Innovation, E.g., Davidson v. Riley, 44 F.3d 1118, 1122 (2d Cir. 1995); Lemons v.

The question before us is whether the defendants’ desire to obtain

privileged information when a sufficiently important public interest is at stake. Kupchun, show that we will find a compelling justification for the disclosure of condition.” Id. Our decisions in In re Grand Jury Subpoena, Pelletier, and available which has a bearing on defendant’s dangerousness or mental yield when disclosure would provide relevant information concerning alleged determination, we held that it had to “be presented with the best information defendant to go at large. Id. at 415. For the court to make such a the superior court to determine whether it would be dangerous for the hearing. Kupchun, 117 N.H. at 415-16. The purpose of the hearing was for patient privilege was appropriate in the context of a criminal commitment Id. at 248-49. In Kupchun, we determined that piercing the psychotherapist-

information’s disclosure. We considered this issue in

that the spousal privilege under New Hampshire Rule of Evidence 504 would other decisions. In State v. Pelletier, 149 N.H. 243, 249 (2003), we determined using the “compelling justification” test, we have employed similar reasoning in 150 N.H. at 442. Though In re Grand Jury Subpoena is our only decision support piercing the physician-patient privilege. In re Grand Jury Subpoena, an element of a felony criminal offense constituted a compelling justification to Subpoena, and determined that obtaining privileged information to establish

We now address whether there is a compelling justification for the

articulated above. trial court must make the requisite findings, in accordance with the standard p. 11 11

the chain of causation. privileged information was the only means for a defendant to show a break in

be implicated by other arguments. An example is an argument that the

which the disclosure was ordered.

DALIANIS, DUGGAN and HICKS, JJ., concurred.

privilege. We note that, though the defendants’ argument in the instant case Id. disclosure of privileged information to that which is relevant to the purpose for presents a compelling justification to pierce the psychotherapist-patient N.H. at 448. The trial court’s responsibility during this review is to limit the court should conduct an in camera review. In re Grand Jury Subpoena, 150 privilege successfully shows that the information sought is essential, the trial We finally instruct the trial court that if the party seeking to pierce the

the trial court for a determination on whether or not the defendants’ argument would impair their ability to fairly defend themselves. We remand this issue to