George R. Caesar, M.D. v. Louis P. Mountanos, as Sheriff of the County of Marin, State of California

542 F.2d 1064

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 13, 1976
• Docket: 74-2271
• Status: Published

Opinions

JAMESON, District Judge:

Petitioner, Dr. George R. Caesar, a licensed psychiatrist practicing in California, has appealed from an order denying his petition for writ of habeas corpus seeking to set aside a contempt adjudication and sentence in the California Superior Court, Marin County.¹ He was adjudged in contempt for refusing to obey an order directing him to answer questions relating to communications with a former patient, based on “patient-litigant exception” to the psychotherapist-patient privilege, contained in California Evidence Code § 1016.² Petitioner contends that § 1016 violates “rights of privacy, due process and equal protection which exist under the Constitution of the United States”.³ In a detailed and well reasoned opinion the Supreme Court of California rejected this contention in In Re Lifschutz, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1 (1970), and upheld the validity of § 1016. We agree with the conclusions of the court in In Re Lifschutz and affirm the order of the district court.

Background

In December 1969, Joan Seebach was referred to Dr. Caesar for psychiatric examination and treatment following an automobile accident on December 4, 1969. Dr. Caesar saw her approximately 20 times for psychotherapy. Miss Seebach had been in another automobile accident on August 30, 1968. She filed separate actions to recover damages for both accidents in July and August, 1970. In her complaints Miss Seebach alleged that the accidents caused her personal injury and pain and suffering not limited to her physical ailments. She alleged further that she had incurred medical expenses and loss of income in amounts not fully ascertainable at that time. In a deposition in one of the cases, taken on June 15, 1971, Miss Seebach and her counsel indicated that “some of the care and treatment” given by Dr. Caesar “may be involved in this lawsuit”.⁴ Another psychiatrist in a deposition testified that Miss Seebach’s attending physicians had recommended referral to Dr. Caesar because they felt there was “an emotional overlay” to her problems and that she was “magnifying her distress”.⁵

The two actions were consolidated for trial, and Dr. Caesar’s deposition was taken on April 5, 1972. He testified that he had given his notes on Miss Seebach to her counsel. He refused to answer any questions regarding his treatment of Miss Seebach, stating that in his judgment “answering further questions and revealing her confidences could be harmful to her psychologically, and detrimental to her future well-being”. Caesar indicated that he had not received “valid consent” from Miss Seebach which would permit him to testify. Counsel for Miss Seebach then told Caesar that she was no longer his patient and that although there had been some prior confusion about Miss Seebach’s consent, she had authorized counsel to stipulate that consent for Caesar to testify had been given. Caesar refused to accept this consent and stated further that even if written consent were given he would still refuse to testify. Subsequently, Miss Seebach filed a notice revoking her waiver of the psychotherapist-patient privilege.

Following a hearing an order was entered in the Marin County Superior Court on October 18, 1972 requiring Dr. Caesar to give his deposition. The court held that under § 1016, as construed in In Re Lifschutz, Miss Seebach had waived the psychotherapist-patient privilege when she placed her “mental or emotional condition” in issue by “claiming damages for mental and emotional distress”. At a second deposition on November 27, 1972 Dr. Caesar acknowledged that he had treated Miss Seebach for injuries she had sustained in the accidents and that he had diagnosed her condition as depressed. He refused, however, to answer eleven questions concerning the relationship of her emotional condition to the accidents. The contempt order followed on December 12, 1972.⁶ After petitioner had exhausted his state court remedies, he sought relief in federal court. In denying his petition, the district court held that § 1016 was not unconstitutional, did not invade any rights of privacy of petitioner or his patient, and that the contentions of petitioner should be addressed to the State Legislature rather than the courts.

Contentions on Appeal

Under California Evidence Code § 1014 a psychotherapeutic patient has the privilege to refuse to disclose and to prevent others from disclosing confidential communications between the patient and doctor. § 1015 allows the psychotherapist to claim the privilege of his patient when information about a confidential communication is sought. However, as noted supra, § 1016 provides, “There is no privilege under this article as to communications relevant to an issue concerning the mental or emotional condition of the patient if such an issue has been tendered by: (a) The patient ...”

In attacking the validity of § 1016, petitioner contends that (1) there is an absolute constitutional protection for communications between patients and their psychotherapists of the type sought from Dr. Caesar, based on the right of privacy; (2) § 1016 violates the Equal Protection Clause of the Fourteenth Amendment in that (a) psychotherapeutic patients are deprived of rights afforded other litigants, and (b) § 1016 “discriminates unreasonably between those who seek out psychotherapists and those who seek out clergymen for the relief of emotional distress”; and (3) § 1016 is unjustified by any compelling state interest and is not narrowly drawn to express only the legitimate state interest at stake. Virtually all of these issues were considered in Lifschutz. It is contended, however, that the California court reached the wrong result in Lifschutz and that its decision “cannot withstand more current constitutional scrutiny”, particularly in the light of the broader reach of doctor-patient privacy recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

The Lifschutz Decision

Lifschutz, a psychiatrist, was placed in custody for refusing to obey a discovery order issued by a trial judge pursuant to California Evidence Code § 1016. In Lifschutz, as here, the patient had tendered his mental and emotional condition in issue in a lawsuit, thus activating a waiver of the psychotherapist-patient privilege under the statute. The California Supreme Court denied Lifschutz’s petition for habeas corpus, holding that the federal constitution did not establish an absolute privilege for psycho-therapeutic communications. The court construed § 1016 to require disclosure only of information directly pertinent to issues raised by the patient in a lawsuit and held that in applying the section, the psychotherapeutic privilege should be liberally construed in favor of the patient. When so limited, the court found that the statute did not constitute an impermissible invasion into the sphere of privacy encompassing the doctor-patient relationship in light of the various interests which must be balanced.⁷

Absolute Privilege

Petitioner relies, as did Dr. Lifschutz, on the fundamental right of privacy encompassing the doctor-patient relationship. This right of privacy, the psychotherapists contend, must be construed to provide an absolute privilege for psychotherapeutic communications because of the nature of the relationship, depending, as it does, on the patient’s complete confidence in the psychotherapist.⁸ The Lifsehutz court found this argument to raise serious and meritorious issues. The court held, however, that Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the leading decision on doctor-patient rights at the time Lifsehutz was decided, did not prohibit all state interference in the doctor-patient relationship but instead left room for some state regulation. The Lifsehutz court recognized, as we do, that psychotherapy is perhaps more dependent on absolute confidentiality than other medical disciplines. In interpreting § 1016 the court was “mindful of the justifiable expectation of confidentiality that most individuals seeking psychotherapeutic treatment harbor” 85 Cal.Rptr. at 839, 467 P.2d at 567. The court noted, however, that psychotherapy had not been destroyed but rather had flourished in the face of § 1016 and similar statutes which establish less than absolute psychotherapist-patient privilege. The court concluded that the constitution does not provide psychotherapists with an absolute right of privacy but permits limited intrusion into the psychotherapist-patient privilege when properly justified.

Petitioner contends that because the court in Lifsehutz did not have the benefit of the more recent analysis of the doctor-patient relationship in Roe v. Wade, supra, and Doe v. Bolton, supra, the Lifsehutz opinion is subject to re-examination and correction.⁹ We disagree. Both the Roe and Doe decisions spoke of and relied upon a conditional right of privacy in the doctor-patient relationship. As the Court in Roe, 410 U.S. at 153-54, 93 S.Ct. at 727, noted after reviewing a long line of privacy cases, “The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate.” Roe held that interference with the doctor-patient relationship could be justified upon the showing of a “compelling state interest”. Roe, 410 U.S. at 163, 93 S.Ct. 705. Similarly the court in Lifschutz recognized that it was dealing with a qualified right which could be infringed upon a showing of an “important state interest”. The analytical methodology followed by Lifschutz is essentially the same as that followed in Roe and Doe and may be properly applied here. We have no doubt that the right of privacy relied on by Dr. Caesar is substantial. However, the right is conditional rather than absolute and limited impairment of that right may be allowed if properly justified.¹⁰

Violation of Equal Protection Clause

Petitioner argues that § 1016 conflicts with the Equal Protection Clause in two ways: (1) by placing a pre-condition on psychotherapeutic patients’ access to the courts, § 1016 deprives them of rights afforded other litigants; and (2) by establishing an absolute privilege for clergyman-penitent communications in § 1034, the State impermissibly discriminates between those who seek clergymen for counseling and those who consult psychotherapists. We find that both contentions were adequately considered and correctly dealt with in Lifschutz.

The court in Lifschutz noted that § 1016 neither contemplates a complete waiver of the psychotherapeutic communication privilege nor seeks to deter psychotherapy patients from instituting lawsuits. As construed in Lifschutz, disclosure is strictly limited to that information placed in issue by the plaintiff himself and about which he and his psychotherapist have practically exclusive knowledge.¹¹ Although the effect of the section may be to require litigants to make some hard choices before bringing a lawsuit and may in fact discourage some legal actions, a state may place formal and procedural requisites on litigants without violating their constitutional rights to judicial process as long as the state’s action is based upon a proper consideration of the nature of the proceedings and interests involved. See, Boddie v. Connecticut, 401 U.S. 371, 377-378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).¹² Every person who brings a lawsuit under our system of jurisprudence must bear disclosure of those facts upon which his claim is based. Section 1016, rather than discriminating improperly against psychotherapy patients, instead places them on the same footing as other litigants.

Concerning the difference. between the privileges granted clergymen and psychotherapists, the Lifschutz court concluded that the distinction did not render the California statutes unconstitutional. The court noted that each of the evidentiary privileges recognized by law is subject to different exceptions based upon the nature of the relationships involved.¹³ The attorney-client privilege is subject to exception in several instances, as, for example, when a lawyer is contacted by the client for criminal purposes or where an issue of the lawyer’s duty to his client is raised. Calif.Evid. Code §§ 956-962. The marital communication privilege is inapplicable where one spouse injures another or in actions for alienation of affection. Calif.Evid.Code §§ 972, 981-986. The physician-patient privilege, like the psychotherapist-patient privilege, is not applicable where the patient places his physical condition at issue in a lawsuit. Calif.Evid.Code § 996. Each of these exceptions to the general grant of evidentiary privilege has been created by the State Legislature in an effort to accommodate and balance the various interests involved. See 8 Wigmore, Evidence § 2285, et seq., (McNaughton Rev.1961). The clergyman-penitent privilege was recognized in Lifschutz as being a necessary “accommodation by the secular state to strongly held religious tenets of a large segment of its citizenry.” 85 Cal.Rptr. at 837, 467 P.2d at 565. This need for accommodation, coupled with the difference between the nature of the services performed by clergymen and psychotherapists, can warrant the Legislature’s decision to treat the two professions differently.

Like the court in Lifschutz we decline to pass on the question of whether the accommodation granted by § 1034 can be reconciled with the Establishment Clause. Petitioner has standing only to raise issues with respect to the constitutionality of § 1016. That section is not invalid because it fails to grant psychotherapists the same privileges granted clergymen and members of other learned professions.

Compelling State Interest

Where “fundamental rights” are involved, “regulation limiting these rights may be justified only by a ‘compelling state interest’,” and “legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 728. Petitioner contends that there is no demonstrable compelling interest to support § 1016 and it is, therefore, constitutionally invalid. We disagree. As Mr. Justice White stated in his concurring opinion in Murphy v. Waterfront Comm'n, 378 U.S. 52, 93-94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 (1964):

“Among the necessary and most important of the powers of the states as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U.S. 273 [39 S.Ct. 468, 63 L.Ed. 979] (1919). Such testimony constitutes one of the Government’s primary sources of information.”

The state has a compelling interest to insure that truth is ascertained in legal proceedings in its courts of law. This interest has been held to be sufficient to require newsmen to testify before grand juries concerning privileged information, Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), to compel testimony from witnesses invoking the Fifth Amendment privilege against self-incrimination once immunity has been given, Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and to require witnesses before grand juries to testify concerning illegally obtained evidence, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). California’s interest in requiring psychotherapists to produce limited disclosure of confidential communications is adequately supported by a compelling interest under current constitutional standards.

Is Section 1016 “Narrowly Drawn”?

In Lifschutz, the court rejected the broad effect of § 1016 urged by petitioner and concluded that the section “must be construed not as a complete waiver of the privilege but only as a limited waiver concomitant with the purposes of the exception”. The court continued: “Under section 1016 disclosure can be compelled only with respect to those mental conditions the patient-litigant has ‘disclosefd] by bringing an action in which they are at issue’ (City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 231 P.2d 26 (1951); communications which are not directly relevant to those specific conditions do not fall within the terms of section 1016’s exception and therefore remain privileged”. 85 Cal.Rptr. at 842, 467 P.2d at 570.¹⁴

The court in Lifschutz noted also that California Code of Civil Procedure, § 2019(b) grants the trial court broad discretion to issue protective orders which justice requires to protect the party and witness, and that, “as with any evidence, the court retains discretion to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will . (b) create substantial danger of undue prejudice, . . . ’ (Evid. Code, § 352)” 85 Cal.Rptr. at 844, 467 P.2d at 572. These safeguards and the express limitation in the statute itself afford protection for both the patient and psychotherapist sufficient to withstand a constitutional attack.

Miss Seebach has clearly raised before the court the issue “concerning [her] mental and emotional condition” and is seeking damages for mental and emotional injuries resulting from the accidents. She was examined and treated by Dr. Caesar for emotional distress and depression following the second accident. He testified that he had an opinion “with respect to whether Miss Seebach suffered from any emotional distress of any kind as a result of her having been in the two accidents”, but he declined to state what the opinion was. The eleven questions Dr. Caesar declined to answer all related directly to his opinion regarding whether Miss Seebach suffered emotional distress or depression from the accidents, whether any condition Dr. Caesar found was the result of a combination of the accidents and other factors in her life, and whether the psychological factors he found played a role in the origin or aggravation of the cervical pain which Miss Seebach testified she was suffering from. The questions were all clearly relevant and related directly to the issue of her mental and emotional condition which Miss Seebach herself had raised. Although Miss Seebach later consulted another psychiatrist for diagnosis prior to trial, the new psychiatrist obviously could not substitute for the treating psychotherapist since she was unable to testify with respect to Miss Seebaeh’s condition when she was examined by Dr. Caesar or any change in condition during the rather extended period of psychotherapy.

Conclusion

We conclude that under prevailing constitutional standards § 1016 as interpreted by the Supreme Court of California in Lifschutz strikes a proper balance between the conditional right of privacy encompassing the psychotherapist-patient relationship and the state’s compelling need to insure the ascertainment of the truth in court proceedings. The plaintiff has placed her mental and emotional condition in issue. By raising this issue she herself has breached the confidential relationship and made her emotional problems known to the public. Having so acted, the patient and her psychiatrist should not now be permitted to rely upon an absolute privilege which would preclude a proper determination of the truth of the plaintiff-patient’s allegations. The disclosure required by § 1016 is mandated in the interests of a fair adjudication of the issues raised.

The judgment of the district court denying the petition for habeas corpus is affirmed.

1 . Commitment was stayed pending appellate review in the California and Federal courts. A writ of certiorari was denied by the California Court of Appeal, First Appellate District, Division Four, and a hearing was denied by the Supreme Court of California.

2 . § 1016 relating to “Patient-litigant exception” reads in pertinent part:

“1016. There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by:

(a) The patient;”

3 . The California State Psychological Association has filed an amicus curiae brief in support of petitioner’s position.

4 . Counsel for Miss Seebach stated that his client had been referred to Dr. Caesar because her attending physician felt that her condition might be the result of a conversion reaction or depressive reaction, and that there was some difference of opinion between some of the treating physicians and Miss Seebach and her counsel. Miss Seebach then said, “You have to see the total picture, because due to these accidents, my life style has changed considerably”.

5 . The psychiatrist said further that she understood that Dr. Caesar had traced some of Miss Seebach’s emotional problems to her early childhood.

6 . The order of the Superior Court required Caesar to answer only those questions which he refused to answer at the November 27 deposition.

7 . Under a different factual situation the Supreme Court of California reaffirmed its conclusion in Lifsehutz iin Tarasoff v. Regents of University of California, 118 Cal.Rptr. 129, 529 P.2d 553 (in banc, 1974). In Tarasoff the court construed California Evidence Code § 1024, involving another exception to the psychotherapist-patient privilege. Two members of the court dissented:

8 . Petitioner’s claim “is limited to protection against compelled disclosures in the course of civil proceedings of psychotherapeutically obtained communications”. It does not involve a claim of absolute confidentiality in the context of a patient’s apparent propensity to violence (see Tarasoff v. Regents, n. 6), nor the right to compel disclosure in criminal proceedings.

9 . We agree, as did the court in Lifsehutz, that the right of privacy encompassing the doctor-patient relationship identified and explained in Griswold, Roe, and Doe goes beyond the factual context of those cases, i. e., intimate marital and sexual problems, and extends to psychotherapist-patient communications. The question is whether that right is absolute.

10 . Petitioner also relies on Roe v. Ingraham, 480 F.2d 102 (2 Cir. 1973). Ingraham, however, applied the same balancing test as utilized in Roe v. Wade, supra, and held that while prescription records fall within the area protected by the right of privacy, that right is not absolute and may be subject to state regulation. 480 F.2d at 108.

11 . As we note infra, we doubt that having the patient-litigant referred to another psychotherapist for diagnostic examination can substitute for the information the treating psychotherapist can provide about the patient.

12 . Boddie held that a state could not impose court filing fees which had the effect of discriminating against litigants on the basis of wealth, stating that “ ‘within the limits of practicability’ ... a State must afford to all individuals a meaningful opportunity to be heard”. 401 U.S. at 379, 91 S.Ct. at 786. Here neither the patient nor petitioner has been deprived of a meaningful hearing.

13 . Under the common law a person was required to give testimony upon all facts inquired of in a court of law and few, if any testimonial privileges were allowed. Those privileges which have developed are based upon the existence of four fundamental conditions: (1) the communication must originate in confidence; (2) confidentiality must be essential; (3) the confidential relationship must be one which ought to be fostered; and (4) the injury resulting from disclosing the information must be greater than the benefit gained by disclosure. 8 Wigmore, Evidence § 2285 (McNaughton Rev. 1961). Wigmore raises serious doubts about the existence of the fourth element with regard to patient-physician communications.

14 . The court said further: “Disclosure cannot be compelled with respect to other aspects of the patient-litigant’s personality even though they may, in some sense, be ‘relevant’ to the substantive issues of litigation. The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.”