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Put up or shut up – workers claiming emotional distress must produce medical records to prove it

July 19th, 2013  |  Lorene Park

By Lorene D. Park, J.D.

While many think the doctor-patient privilege is sacrosanct, in fact, it is not absolute. Much like an attorney-client privilege is waived when the client places the attorney’s representation at issue (such as in a malpractice claim), an employee who puts his or her mental condition at issue by claiming that an employer’s actions or inaction caused emotional distress is often held to have waived the doctor-patient privilege. Basically, it’s a put-up-or-shut-up situation.

As explained by a court in a sexual harassment case, because the employee claimed the employer’s actions caused mental anguish and emotional distress, access to her medical and mental health records was warranted so the employer could evaluate, for purposes of its defense, whether the emotional distress stemmed from a pre-existing condition or other unrelated events (Seegmiller v Macey’s, Inc, DUtah June 19, 2013). Likewise, in a case where an employee sought damages for emotional pain and suffering allegedly caused by an employer’s race and gender bias, the court held that her demand for such damages waived any broad assertion of physician-patient privilege (Johnson v Federal Express Corp, MDPa  April 24, 2013). However, the production of her records was subjected to a protective order in the interest of maintaining her privacy. Protective orders are common in these situations. Notably, an employee who refuses to comply by providing records risks sanctions, such as having to pay attorneys’ fees incurred by an employer in having to re-do depositions or to obtain a court order compelling the employee to comply (see, e.g., Knight v Domtar Paper Co, LLC, DSC April 17, 2013).

Compelled exams. In some cases where an employee alleges severe emotional distress as an element of damages, or asserts a separate claim for emotional distress, courts will often grant an employer’s motion to compel the employee to undergo an independent psychiatric exam under Rule 35. This usually happens when the court finds that the employee has claimed more than “garden variety” emotional distress. As explained by one court, to warrant an examination under Rule 35, the employee must affirmatively put her mental condition at issue and the employer must show good cause (Denny v Wingspan Portfolio Advisors, LLC, NDTex June 5, 2013). To the court, allegations of general emotional distress for which an employee seeks no treatment are not enough to put mental condition at issue.

In the view of many courts, an employee places her mental condition at issue when she alleges a permanent or ongoing psychiatric mental disorder or emotional distress that requires psychiatric or psychological treatment as a result of discrimination. But this issue is not limited to discrimination cases. For example, a court in Washington found that an employee, who sought compensation for wages lost during a period of disability caused by emotional distress, waived the physician-patient privilege by asserting more than a “garden-variety” claim and granted, in part, an employer’s motion to compel discovery of her medical records and information (Carrig v Kellogg USA Inc, WDWash January 30, 2013). According to the court, “emotional distress which is so severe that it eliminates a person’s ability to work and forms the basis for leave is not ‘garden variety.’”

Conversely, in one case, an employee who sought emotional distress damages, but characterized them as “garden variety” and denied receiving professional mental health treatment, was not required to undergo a Rule 35 exam, even though he supported his claims by producing the report of a psychologist identified as a “workplace bullying” expert (Montana v County of Cape May Board of Freeholders, DNJ April 22, 2013). He did not seek to produce any mental health records at trial, or to call a medical expert on his behalf. The court held that the bullying expert’s report did not put the employee’s mental health in controversy because it focused on the nature of the employer’s actions, not the employee’s mental health.

As for “good cause” for the employer’s seeking the Rule 35 exam, courts will consider whether the employee has retained an expert and whether the employer has other means of obtaining the information (i.e., whether the examination could reveal specific facts necessary to the claim or defense), among other factors.

The message for employees (and plaintiffs’ attorneys) is clear — if you want to claim emotional distress as more than just a general “garden variety” element of damages, be ready to back that up with medical records.