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Docket Number

Docket No. 50983.

Attorney(S)

COUNSEL Charles A. Pinkham, Jr., for Petitioner. No appearance for Respondent. Jack K. Berman and Robert I. Kligman for Real Party in Interest.

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Smart Summary

Summary of Opinion: Gerald Walker Smith v. The Superior Court of San Mateo County; Linda R. Smith (Apr. 17, 1981)

Factual and Procedural Background

Gerald Smith, a licensed psychologist and the petitioner in a marital dissolution action, sought a writ of mandate or prohibition to prevent enforcement of a trial court discovery order requiring him to produce the names, addresses and telephone numbers of certain patients and former patients. In the dissolution action, petitioner's wife (real party in interest) served an interrogatory seeking, with reference to each person petitioner had seen professionally since January 1, 1978, the patient's name, address, telephone number, and amounts paid to petitioner for a specified period. Petitioner objected on grounds of the psychotherapist-patient privilege and submitted a declaration describing the confidential nature of his practice and stating that he had already produced joint income tax returns and bank deposit records but kept no separate billing records.

The wife moved to compel answers, asserting the information was relevant to spousal support and alleging discrepancies between bank deposits and appointment book evidence of income. The trial court urged the parties to craft a solution preserving patient anonymity but ultimately granted the motion to compel, ruling that no psychotherapist-patient privilege existed as to patients' names, addresses, telephone numbers and amounts received. The Court of Appeal, on an alternative writ issued at the direction of the California Supreme Court, reviewed whether the discovery order violated the psychotherapist-patient privilege and concluded that the trial court's order should be restrained.

Legal Issues Presented

Whether the psychotherapist-patient privilege (Evidence Code, § 1010 et seq.) protects the identity (names, addresses and telephone numbers) of a psychologist's patients from discovery in a marital dissolution action.

Arguments of the Parties

Petitioner's Arguments

Petitioner objected to the interrogatory based on the psychotherapist-patient privilege, asserting that "the very fact that a person consults me constitutes a privileged communication" and that disclosure of a patient's identity would deter patients from seeking treatment.
Petitioner stated he had already submitted income tax returns and bank deposit records and that he kept no billing records; he expressed willingness to disclose those records but not the identities of patients.

Real Party in Interest's Arguments

Real party in interest contended the requested information was relevant to spousal support and needed to ascertain petitioner's true income.
Counsel alleged an apparent discrepancy between yearly bank deposits (approx. $16,000) and appointment-book evidence of income (approx. $60,000), and asserted that monies may have been deposited in safety deposit boxes during the marriage, arguing that bank deposit copies and tax returns were an inadequate response.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pedlow v. Superior Court (1980) 112 Cal.App.3d 368, 369-370 [169 Cal.Rptr. 326]	Authority for issuance of an alternative writ when petitioner lacks an adequate remedy at law (context for issuance of alternative writ).	Noted that the California Supreme Court directed issuance of an alternative writ on the basis that petitioner lacked an adequate remedy at law.
In re Lifschutz (1970) 2 Cal.3d 415, 431, 434-435 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]	Discusses the psychotherapist-patient privilege, its constitutional privacy basis, and suggests that disclosure of having consulted a psychotherapist may waive the privilege.	Relied on Lifschutz for background that the statutory privilege is construed in favor of the patient and is partly based on constitutional privacy; cited the court's implication that identity of a psychotherapy patient is protected.
Blue Cross v. Superior Court (1976) 61 Cal.App.3d 798, 800 [132 Cal.Rptr. 635]	Illustrates that disclosure of a patient's identity can reveal the ailment and violate physician-patient privilege.	Used as precedent to support the proposition that disclosure of identity reveals confidential medical information and thus is protected.
Marcus v. Superior Court (1971) 18 Cal.App.3d 22, 24 [95 Cal.Rptr. 545]	Similar principle: identity disclosure can reveal medical treatment and condition.	Applied as analogous authority showing identity disclosure can reveal the patient's condition and thus be privileged.
Costa v. Regents of Univ. of California (1953) 116 Cal.App.2d 445, 463 [254 P.2d 85]	Example of cases finding identity disclosure reveals medical treatment and condition.	Included among cases showing identity disclosure violates physician-patient privilege where it reveals the patient's ailment.
Rudnick v. Superior Court (1974) 11 Cal.3d 924, 933-934, fn. 13 [114 Cal.Rptr. 603, 523 P.2d 643]	Referenced for related privilege principles concerning disclosure.	Cited as additional authority in the discussion of medical/therapeutic confidentiality.
City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 518-519 [168 Cal.Rptr. 49]	Held that compelled disclosure of psychiatric treatment and the identity of the provider would reveal the existence and nature of a mental or emotional problem beyond what Evidence Code § 1014 requires.	Described as persuasive; the court followed its reasoning to hold that the identity of psychotherapist's clients is protected.
Matter of Kaplan (1960) 8 N.Y.2d 214 [203 N.Y.S.2d 836, 168 N.E.2d 660]	Held that the identity of a client was protected by the attorney-client privilege (used illustratively in Lifschutz).	Used to support the implication in Lifschutz that identity of a psychotherapy patient may be privileged.
United States v. Hodge and Zweig (9th Cir. 1977) 548 F.2d 1347, 1353	Part of a line of cases holding the identity of an attorney's client is generally not protected by the attorney-client privilege.	Cited by real party in interest; the court distinguished these cases as inapplicable because disclosure of an attorney's client identity usually does not reveal the nature of the communication, unlike psychotherapy.
Willis v. Superior Court (1980) 112 Cal.App.3d 277, 291 [169 Cal.Rptr. 301]	Another case addressing the lack of protection for the identity of an attorney's client under attorney-client privilege.	Cited by real party; the court found it distinguishable for reasons discussed in the opinion.
In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 111 [113 Cal.Rptr. 58]	Also cited among cases holding attorney-client identity is generally not privileged.	Cited by real party; court treated these authorities as distinguishable from the psychotherapist context.

Court's Reasoning and Analysis

The court began with the statutory framework for the psychotherapist-patient privilege (Evidence Code §§ 1012, 1014, 1015, and references to §§ 912, 1016-1028). It explained that a "confidential communication" under section 1012 includes information transmitted between patient and psychotherapist in confidence. Under section 1015, a psychotherapist present when disclosure is sought must assert the privilege.

The court emphasized the legislative comment to section 1014 recognizing a broader privilege for psychotherapists than for physicians because psychotherapy depends on "the fullest revelation of the most intimate and embarrassing details" and because assurances of confidentiality are necessary to encourage treatment and research. The court noted that the statutory privilege is to be construed in favor of the patient and is rooted in privacy concerns.

Because the parties conceded that none of the statutory exceptions applied, the sole question was whether the requested identifying information (names, addresses, telephone numbers and amounts received) constituted a "confidential communication." The court reasoned by analogy to physician-patient cases holding that disclosure of identity can reveal the ailment and thus violate privilege. It found the situation analogous: disclosure of a psychotherapist's patient identity inevitably reveals that the person suffers from mental or emotional problems.

The court found the reasoning in City of Alhambra persuasive: compelling disclosure of the fact of psychiatric treatment would reveal more about the nature of the condition than Evidence Code § 1014 requires to be disclosed. The court also distinguished cases about attorney-client identity protection, explaining that disclosure of an attorney's client identity generally does not reveal the reason for legal counsel or the content of communications, whereas disclosure of psychotherapy care does reveal the existence and, in a general sense, the nature of the malady.

Finally, while acknowledging the wife's legitimate interest in determining petitioner's income for spousal support purposes, the court concluded that the legislative determination favoring protection of confidential psychotherapeutic communications outweighs that interest. The court noted alternative, nonprivileged means to probe petitioner's income, such as examining staff or associates about patient volume and fees and examining inconsistencies between claimed income and living expenses.

Holding and Implications

Holding: The Court of Appeal held that the identity of petitioner's clients (names, addresses and telephone numbers) is protected by the psychotherapist-patient privilege and issued a peremptory writ of prohibition restraining enforcement of the trial court's discovery order of September 24, 1980, which required disclosure of those items.

Implications:

The direct effect is that petitioner is not required to disclose the names, addresses and telephone numbers of his patients and former patients in response to the interrogatory at issue.
The decision preserves the statutory psychotherapist-patient privilege for client identity where disclosure would reveal that treatment was sought and, generally, the nature of the malady.
The court noted that the real party in interest is not without alternative means to probe petitioner's income: she may examine petitioner's receptionist or professional associates regarding patient volume and customary fees, review bank deposit and tax records, and attempt to show inconsistencies between petitioner's representations and past living expenses.
The opinion distinguished attorney-client identity cases and limited the compelled-disclosure rationale in that different professional contexts may warrant different treatments of client identity.

Additional procedural note: The appellate opinion records that the Supreme Court directed issuance of an alternative writ (citing Pedlow) and that the petition of real party in interest for a hearing by the Supreme Court was denied June 10, 1981.

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GERALD WALKER SMITH, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; LINDA R. SMITH, Real Party in Interest.

OPINION

SMITH, J.

Gerald Smith, the petitioner in a marital dissolution action and a licensed psychologist, seeks a writ of mandate or prohibition to restrain respondent court from enforcing a discovery order requiring him to produce the names, addresses and telephone numbers of certain patients and former patients. This court issued an alternative writ at the direction of the Supreme Court.

By its order directing that an alternative writ be issued, the California Supreme Court has determined that, in the ordinary course of law, petitioner is without adequate remedy. ( Pedlow v. Superior Court (1980) 112 Cal.App.3d 368, 369-370 [ 169 Cal.Rptr. 326].)

The sole issue presented is whether the discovery order violates the psychotherapist-patient privilege (Evid. Code, § 1010 et seq.).

In the dissolution action, real party in interest, petitioner's wife, served the following interrogatory upon petitioner: "With reference to each person whom you have seen professionally since January 1, 1978, list the following: (a) Name of patient; (b) Address of patient; (c) Telephone number of patient; (d) How much money have you received from that patient since January 1, 1978, through May 31, 1979?"

When petitioner objected to this interrogatory on the basis of the psycotherapist-patient privilege, real party in interest filed a motion to compel an answer. In his declaration in opposition to real party in interest's motion, petitioner stated: "Much of my practice concerns consultations about family and marital matters, sexual matters including extramarital affairs and incest and other similar topics. The very fact that a person consults me constitutes a privileged communication. People would not consult me if they knew that the fact of their consulting with me might be disclosed to anyone. Many of my patients consult me without the knowledge of their spouse or mate, the problems with whom (often very intimate and confidential problems) are the subject of the consultation. . . . I have already submitted income tax returns — indeed, joint income tax returns in which Respondent [real party in interest] has participated . . . she can if she wishes review bank deposit records which accurately reflect the money I received from my practice. I keep no billing records other than bank deposit records which are reflected in bank statements. I have no objection to disclosing this information."

At the hearing on the motion, counsel for real party in interest stated that the information sought was relevant to the issue of spousal support. Counsel alleged that, while petitioner's bank deposit slips showed yearly deposits of approximately $16,000, appointment books in real party in interest's possession revealed an income of approximately $60,000 per year and that "monies were deposited in safety deposit boxes during the whole course of the marriage."

The trial court urged the parties to work between themselves and find a compromise that would both preserve the patients' anonymity and secure for the wife more detailed information regarding petitioner's income. After the parties failed to reach an agreement, respondent court, in its memorandum of decision, ruled: "Respondent's motion to compel answers to interrogatory # 173 is granted. The Court specifically finds no psychotherapist-patient privilege exists insofar as patient's name, address, telephone number and amount of money received from each such patient. The Court notes that the offer to furnish copies of bank deposits and tax returns is a totally inadequate response where petitioner husband acknowledges he does not bill and has no other financial records."

Evidence Code section 1014 in pertinent part provides: "Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the psychotherapist at the time of the confidential communication, . . ." Section 1015 provides: "The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014" Thus, under the conditions set out in section 1015, petitioner must assert the privilege of his clients to prevent disclosure of privileged communications.

All references are to the Evidence Code unless otherwise indicated.

In its 1965 comment to section 1014, the Legislature recognized that the unique nature of the psychotherapist-patient relationship requires a greater degree of protection than that afforded the physician-patient relationship. The Legislative Committee comment states: "A broad privilege should apply to both psychiatrists and certified psychologists. Psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life. Research on mental or emotional problems requires similar disclosure. Unless a patient or research subject is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment or complete and accurate research depends."

The Legislative Committee comment continues: "The Law Revision Commission has received several reliable reports that persons in need of treatment sometimes refuse such treatment from psychiatrists because the confidentiality of their communications cannot be assured under existing law. Many of these persons are seriously disturbed and constitute threats to other persons in the community. Accordingly, this article establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege. Although it is recognized that the granting of the privilege may operate in particular cases to withhold relevant information, the interests of society will be better served if psychiatrists are able to assure patients that their confidences will be protected." (See also In re Lifschutz (1970) 2 Cal.3d 415, 431, 434-435, fn. 20 [ 85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1].)

This statutory privilege is to be construed in favor of the patient ( id. at p. 437), and, indeed, is in part based upon the constitutional right to privacy ( id. at p. 432).

(1) Since, as the parties properly concede, information sought by the discovery order does not fall within any of the exceptions to the privilege (see §§ 912, 1016-1028), the sole issue in this case is whether it may be defined as a confidential communication protected by the privilege.

A confidential communication is defined in section 1012 as ". . . information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence . . . and includes advice given by the psychotherapist in the course of that relationship."

It is well-settled that the disclosure of the identity of the patient violates the physician-patient privilege where such disclosure reveals the patient's ailment. ( Blue Cross v. Superior Court (1976) 61 Cal.App.3d 798, 800 [ 132 Cal.Rptr. 635] (hg. den. Nov. 4, 1976) (patients treated for psoriasis); Marcus v. Superior Court (1971) 18 Cal.App.3d 22, 24 [ 95 Cal.Rptr. 545] (hg. den. Aug. 4, 1971) (patients given angiogram); Costa v. Regents of Univ. of California (1953) 116 Cal.App.2d 445, 463 [ 254 P.2d 85] (patients receiving certain cancer treatment); see also Rudnick v. Superior Court (1974) 11 Cal.3d 924, 933-934, fn. 13 [ 114 Cal.Rptr. 603, 523 P.2d 643].)

The instant case presents an analogous situation, for disclosure of the identity of a psychotherapist's patient name inevitably reveals the confidential information, namely, that the patient suffers from mental or emotional problems.

In In re Lifschutz, supra, 2 Cal.3d 415, 430, our Supreme Court implied that the identity of a person seeking psychotherapy is privileged when it stated: "Since Housek, the holder of the [psychotherapist-patient] privilege . . . disclosed at a prior deposition that he had consulted Dr. Lifschutz for psychiatric treatment, he has waived whatever privilege he might have had to keep such information confidential." (Italics added.) In support of this statement, the court cited Matter of Kaplan (1960) 8 N.Y.2d 214 [203 N.Y.S.2d 836, 168 N.E.2d 660], a case which held that the identity of a client was protected by the attorney-client privilege.

In the recent case of City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 518-519 [ 168 Cal.Rptr. 49], an on duty policeman, who was sued for alleged acts of violence, was asked by way of interrogatories whether he had "`ever received psychiatric treatment in any mental institution, hospital, or from any psychiatrist, practitioner or other person'" and, if so, the name and address of such persons or institutions. Finding the facts to be analogous to those of Marcus v. Superior Court, supra, 18 Cal.App.3d 22, the court concluded: "If Shepherd [the policeman] were compelled to divulge the fact of psychiatric treatment, he would simultaneously divulge more about the nature of the condition for which he sought treatment — to wit an emotional or mental problem — than Evidence Code section 1014 requires him to disclose." ( City of Alhambra v. Superior Court, supra, at p. 519.)

We find the reasoning of the City of Alhambra case persuasive and therefore hold that the identity of petitioner's clients is protected under the psychotherapist-client privilege. When a patient seeks out the counsel of a psychotherapist, he wants privacy and sanctuary from the world and its pressures. The patient desires in this place of safety an opportunity to be as open and candid as possible to enable the psychotherapist the maximum opportunity to help him with his problems. The patient's purpose would be inhibited and frustrated if his psychotherapist could be compelled to give up his identity without his consent. Public knowledge of treatment by a psychotherapist reveals the existence and, in a general sense, the nature of the malady.

Real party in interest's reliance upon a line of cases which has held that the identity of an attorney's client is generally not protected by the attorney-client privilege ( United States v. Hodge and Zweig (9th Cir. 1977) 548 F.2d 1347, 1353; Willis v. Superior Court (1980) 112 Cal.App.3d 277, 291 [ 169 Cal.Rptr. 301]; In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 111 [ 113 Cal.Rptr. 58]) is misplaced. Since the disclosure of the identity of the client in the attorney-client setting usually says nothing regarding the reason for legal counsel or the content of the communication with the attorney, the cases cited are distinguishable.

We are aware that our holding withholds from real party in interest the most direct means of ascertaining the exact income of petitioner. However, we have by no means barred all proof on this issue. For example, real party in interest may examine petitioner's receptionist or professional associates regarding the number of patients he ordinarily counsels and his customary fees and gross receipts. She might also attempt to show any inconsistencies between petitioner's representations regarding his income and past living expenses. However, because the Legislature has determined that the interest in protecting confidential communications between the psychotherapist and his patient outweighs the interest in the ascertainment of facts, she may not discover the names, addresses and telephone numbers she seeks.

Let a peremptory writ of prohibition issue restraining the enforcement of the discovery order of September 24, 1980, which requires the disclosure of the names, addresses and telephone numbers of petitioner's patients and former patients.

Taylor, P.J., and Rouse, J., concurred.

The petition of real party in interest for a hearing by the Supreme Court was denied June 10, 1981.

SMITH v. SUPERIOR COURT