Tuesday, November 13, 2012

Judge Nealon Addresses Discoverability of Plaintiff's Prior Alcohol Abuse and Mental Health Records

In his recent November 1, 2012 Opinion in the case of Ferguson v. Ghigiarelli, No. 2011-CV-6033 (C.P. Lacka. Co. Nov. 1, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the discoverability of a Plaintiff’s records related to his alcohol abuse and mental health treatment in a medical malpractice matter.

The Plaintiff contended that his alcohol abuse treatment records were protected from discovery by §108 of the Drug and Alcohol Abuse Control Act, 71 P.S. §1690.108. The Plaintiff also asserted that his mental health records were not discoverable due to the psychiatrist-patient privilege set forth in 42 Pa. C.S. §5944.

Judge Terrence R. Nealon
Lackawanna County
Relying, in part, upon the case of Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998), appeal dismissed, 743 A.2d 451 (Pa. 2000), Judge Nealon held that a Plaintiff impliedly waives the statutory protection afforded to drug and alcohol treatment records by filing a personal injury lawsuit claiming a permanent injury and thereby placing the Plaintiff’s life expectancy at issue.

With respect to the separate mental health records, the Court in Ferguson concluded that the Plaintiff did not similarly waive the psychiatrist-patient privilege by generally alleging “mental and emotional anguish” as elements of the pain and suffering claim. The Court noted that the Plaintiff did not specifically make any claim for damages in this matter for anxiety, severe emotional trauma requiring treatment, or some other specifically recognized mental disorder.

Accordingly, Judge Nealon held that the alcohol abuse treatment records were discoverable but that the mental health treatment records were not under the facts of this case.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

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