Wednesday, April 28, 2010

Superior Court Clarifies Waiver of Privilege in Mental Health/Emotional Distress Claims

I am happy to provide the link to the Superior Court’s April 26, 2010 Opinion in favor of the defense in the case of Gormley v. Edgar in which fellow Pennsylvania Defense Institute member Beth Carter, Esquire, of Bennett, Bricklin and Saltzburg, was defense counsel and in which I participated by way of an Amicus Brief drafted and filed on behalf of the Pennsylvania Defense Institute. The Opinion can be viewed at:

The issue presented was whether the Philadelphia County Court of Common Pleas correctly ruled that the defense should be entitled to discovery of a pre-accident mental health consultation medical record pertaining to a plaintiff who had pled emotional distress claims as a result of a motor vehicle accident.

The Plaintiff argued that they were only pleading ordinary emotional distress claims attendant with a personal injury action.

The defense counsel, fellow PDI member, Beth Carter, Esquire, and I argued that, once the Plaintiff put her mental health condition in issue in the case with claims of severe, disabling and indefinitely continuing mental distress, anguish and anxiety, the discovery of the pre-accident record should be allowed.

The Superior Court panel, consisting of Judge Gantman, Judge Bowes, and Senior Judge Kelly ruled that, where the Plaintiff made allegations in the Complaint that she sustained “anxiety” as a result of the accident, which is a recognized mental health disorder, the Plaintiff put her mental health status at issue. As such, the Superior Court found that the trial court properly ruled that the defense was entitled to discovery of medical records pertaining to the Plaintiff’s pre-accident mental health treatment records.

In the Opinion, the Superior Court did note that that general averments of shock, mental anguish and humiliation, which are routinely recoverable damages for non-economic loss in Pennsylvania, are not sufficient to place a Plaintiff’s mental condition at issue or cause a waiver any privilege against the production of mental health records.

The facts of each case are different. No specific results are implied for future cases. Descriptions of awards in previous cases are no guarantee of future results and should not create any expectations that my firm or I can achieve similar results in another case.

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