Johnson v. Rogers Memorial Hospital, Inc.

2005 WI 114, 700 N.W.2d 27, 283 Wis. 2d 384, 2005 Wisc. LEXIS 350

• Court: Wisconsin Supreme Court
• Decided: July 8, 2005
• Docket: 2003AP784, 2003AP1413
• Status: Published

Opinions

LOUIS B. BUTLER, JR., J.

¶ 1. This case stems from allegations that therapists implanted and reinforced in a patient false memories of childhood physical and sexual abuse committed by the patient's parents. The patient, Charlotte, has since accused her parents, Charles and Karen Johnson (Johnsons) of being child abusers and disassociated herself from them. The Johnsons commenced an action against, among other parties, her therapists for negligent treatment, but the action has been impeded by Charlotte's refusal to waive her therapist-patient privilege.

¶ 2. We accepted the court of appeals' certification to determine whether there should be an exception to the therapist-patient privilege when an adult child accuses her parents of physical and sexual abuse based on memories recovered during therapy, and the parents sue the child's therapists for infliction of emotional harm. The Johnsons submit that this court need not reach that issue, because they argue Charlotte waived her privilege or, in the very least, did not have a privilege with respect to communications made to an unlicensed therapist.

¶ 3. We conclude that Charlotte did not waive her therapist-patient privilege, as she did not disclose any significant part of a confidential matter or communication.¹ We further conclude that Charlotte's communications with the unlicensed therapist were privileged because of Charlotte's reasonable expectation that they would be and because the unlicensed therapist worked under the direction of a physician.²

¶ 4. In response to the court of appeals' certified question, we conclude that there is a public policy exception to the therapist-patient privilege and to the confidentiality in patient health care records where negligent therapy causes false accusations against the parents for sexually or physically abusing their child. The exception is not unlimited and is implicated only where the plaintiff can establish a reasonable likelihood that negligent therapy occurred and the trial court agrees that the records contain relevant information regarding negligent treatment after conducting an in camera review. In those limited instances, the trial court must disclose those records to the plaintiff, and the privilege and confidentiality associated with those particular records is removed.³ Therefore, we reverse the circuit court's order and remand this case for further proceedings.⁴

I — I

¶ 5. This is the second time this case is before this court. See Johnson v. Rogers Memorial Hosp., Inc., 2001 WI 68, 244 Wis. 2d 364, 627 N.W.2d 890 («Johnson II). The factual record is still relatively sparse, as this case was first before this court after a motion to dismiss, and is again before us after limited discovery was conducted following this court's reversal of the order granting the motion to dismiss and remand to the circuit court. For completeness, the following factual background discussion is taken from Johnson II, with supplementations from the discovery that has since occurred.

¶ 6. In late summer or fall of 1991, the Johnsons' daughter, Charlotte, began psychotherapy treatment with Kay Phillips and Heartland Consulting Services. Id., ¶ 2. Shortly after that, Phillips referred Charlotte to Rogers Memorial Hospital for treatment for eating and addictive disorders and for sexual and physical abuse issues. Id. Charlotte was admitted as an inpatient to Rogers Memorial in early November 1991 and remained there until nearly the end of the month. Id., ¶¶ 2-3.

¶ 7. At Rogers Memorial, Charlotte received therapy from Jeff Hollowell and Tim Reisenauer, both licensed psychologists under Wis. Stat. ch. 455 at all relevant times, during which she developed the belief that Charles raped her and Karen physically abused her as a young child.⁵ Id., ¶ 3. Charlotte confronted Charles about this abuse on November 22, 1991, and confronted Karen on October 28, 1993. Id., ¶ 3.

¶ 8. Although the Johnsons denied the abuse occurred, Charlotte terminated her relationship with her parents. Id., ¶ 4. The Johnsons have been unsuccessful in reestablishing any relationship with her, and Charlotte continues to believe that her parents abused her. Id.

¶ 9. On May 29, 1996, the Johnsons filed a complaint against the defendants alleging, among other claims, that Phillips, Hollowell, and Reisenauer provided negligent treatment that resulted in Charlotte falsely believing that she had been sexually and physically abused by her parents as a young child. Id., ¶ 5. Without counseling Charlotte to determine the validity of these memories, even after the Johnsons indicated the memories were unfounded, the Johnsons asserted that the therapists' continuous negligent therapy reinforced these false memories. Id.

¶ 10. After a series of motions to dismiss, the Dane County Circuit Court, the Honorable Daniel R. Moeser, eventually dismissed the Johnsons' complaint for, as relevant here, failing to state a claim upon which relief could be granted. Id., ¶¶ 9-10. The Johnsons appealed, and in the meantime this court decided Sawyer v. Midelfort, 221 Wis. 2d 124, 129, 136, 595 N.W.2d 423 (1999), which recognized a parent of an adult child's third-party professional negligence claim against a therapist for therapy that resulted in implanting and reinforcing false memories of sexual abuse in their child.

¶ 11. Notwithstanding Sawyer, the court of appeals affirmed the circuit court. Johnson v. Rogers Memorial Hosp., Inc., 2000 WI App 166, 238 Wis. 2d 227, 616 N.W.2d 903 (<Johnson I). The court of appeals noted that the Johnsons did not have Charlotte's medical records. Id., ¶ 11. The court of appeals also believed that Charlotte neither waived her right to maintain their confidentiality, nor relinquished her privilege to retain the privacy of her communications with the therapists. Id. Thus, the court of appeals determined that the Johnsons could not prove their claim, nor could the therapists defend against it, without imposing significant collateral burdens on the therapist-patient confidential relationship. Id., ¶ 12. Due to the public policy underlying the patient-therapist privilege, the court of appeals concluded that a patient's records cannot be fair game whenever a suit of this kind was commenced. Id., ¶ 17.

¶ 12. This court reversed, determining that resort to public policy was premature because the record did not clearly indicate whether a burden would be placed on therapist-patient confidentiality. Johnson II, 244 Wis. 2d 364, ¶ 18. Specifically, this court found the record unclear as to whether Charlotte waived her privilege or whether a privilege applied at all under the circumstances. Id., ¶¶ 18-19. The matter was remanded to the circuit court to further develop the record.

¶ 13. On remand, the following factual record was developed regarding whether a privilege applied to Charlotte's therapy with Phillips. During Charlotte's therapy with Phillips, Phillips was not certified as a professional counselor pursuant to Wis. Stat. § 457.12. In fact, Phillips did not receive her certification until March 21, 1995.

¶ 14. While treating Charlotte, however, Phillips was supervised by Dr. David Israelstam, a licensed psychiatrist who supervised all the therapists at Heartland Counseling. Once a month, for one hour, Israel-stam met with the four or five therapists so that they could present their cases and diagnoses. Israelstam would then sign-off on the diagnoses if he agreed with it. Israelstam also indicated he had continued supervision over cases depending on the frequency with which the patient met with the therapist. He reviewed the case in the same manner described above every 90 days if the patient was seen once a week or less and every 30 days if the patient was seen twice a week or more. He also stated he was screening the cases to determine if medications were or hospitalization was necessary.

¶ 15. Sometime in April 1992, Charles went to Phillips' office and attempted to interrupt one of Charlotte's therapy sessions. As a result, the police were called.

¶ 16. The factual record was also developed on remand regarding whether Charlotte waived her privilege. The Johnsons submitted affidavits that averred that Charlotte's confrontations regarding the alleged abuse occurred during Charlotte's therapy sessions at Rogers Memorial Hospital. They further asserted that in addition to Charlotte, Reisenauer, and Hollowell being in the room during the confrontation, another patient, Charlotte's "silent advocate," was present.

¶ 17. Charles' affidavit stated that in late 1991 and early 1992, he agreed to help Charlotte pay for her therapy and began receiving billing statements from the defendants. The bills detailed the dates and times Charlotte underwent therapy as well as who provided therapy.

¶ 18. Charles also produced an authorization for records release that Charlotte signed in February 1992 while an inpatient at St. Mary's Hospital for psychiatric problems. The release form contained check boxes that allowed the patient to decide what type of information to be released. Charlotte did not mark the box for "Records relating to treatment for psychiatric condition," but rather marked the box for "The specific information listed here." Next to this marked box, Charlotte wrote "medical (physical) test results; medications prescribed; general progress."

¶ 19. Based on the release, Charles received Charlotte's psychiatric admission note, consultation notes, and the discharge summary. The psychiatric admission note indicated that Charlotte was recently treated at Rogers Memorial for an eating disorder. The note goes on to explain:

She has been flooded with memories of what she recalls as a sexual rape by her father when she was 3 years old, along with physical and emotional abuse by her mother when she was a child. She found the Rogers program quite helpful during the 3-4 weeks she was there. She was then in an outpatient program on the grounds, attending groups and living in home with other patients without staff present. She then had an episode where she started screaming for 4 hours, with recall of abuse by her mother. She was seen as impulsive by the medical staff at Rogers and was not allowed reentry.

The medical note similarly stated:

She has been experiencing flashbacks related to abuse as a child. She was a victim of sexual abuse by her father at age 3. She was the victim of repeated physical abuse by her mother throughout her childhood. She also was a victim of emotional abuse from both parents throughout her childhood and adolescent years. ... She also has an eating disorder in which she overeats. ... She was hospitalized at Rogers Memorial Hospital from November through December 1991 for this eating disorder. .. . Since her discharge from Rogers Institute in December, she continues to have increasing flashbacks. During these flashbacks, she becomes very emotionally distraught and suicidal.

The discharge summary, written by Dr. Israelstam, identified Phillips as the person who referred Charlotte for admission to St. Mary's Hospital.

¶ 20. The Johnsons also presented Charlotte's June 1992 restraining order petition. Charlotte's grounds for the petition read:

Because of past physical, emotional, and sexual abuse as a child perpetrated by my parents (Charles and Karen) and subsequent confrontation with my father in Nov. of 1991, I have experienced severe stress and anxiety.

The restraining order was extended in July 1993, after Charlotte wrote to the court that "[t]he respondents, my parents (Charles J. and Karen K. Johnson) are perpetrators of incest and physical abuse which has created a condition diagnosed by my physicians as post-traumatic stress disorder."

¶ 21. The Johnsons additionally established that Charlotte considered other legal action. In the beginning of January 1994, Charlotte retained an attorney to explore her options for seeking a civil remedy against the Johnsons for the childhood abuse she believed she suffered. Her attorney communicated with the Johnsons and their attorney regarding settling this possible claim. In one response letter, Charlotte's attorney wrote:

I have handled cases such as this for many years. I have conversed with and/or corresponded with some of the finest, unbiased minds in both the legal and medical/psychological communities. I have no doubts as to the validity of repressed memories. Therefore, if your letter was intended to impress me, it has failed.

After various offers of settlement letters were exchanged, it seems that no further action was taken on the possible lawsuit.

¶ 22. In addition to discovering the above facts, the Johnsons deposed Phillips, Hollowell, and Re-isenauer. All three therapists asserted privilege and refused to answer questions regarding treatment they provided Charlotte. The Johnsons also deposed Charlotte, but she too asserted her privilege.

¶ 23. The Johnsons did, however, obtain an affidavit from a high school friend of Charlotte's, Nidhi Jain. Jain stated that after Charlotte began therapy, she visited Charlotte in June 1992. Although Jain could not remember many specifics of the conversations with Charlotte, Jain remembered Charlotte saying that she was seeing a therapist and was being hypnotized as part of her therapy.

¶ 24. Following this discovery, Hollowell and Re-isenauer moved for summary judgment. They asserted that they were bound to abide by Charlotte's invocation of privilege; the Johnsons could not prove their claim with Charlotte claiming privilege; and public policy otherwise required protecting the therapist-patient privilege. Rogers Memorial and Phillips advanced similar reasons in their motions for summary judgment, while Phillips also argued her records from Charlotte's therapy were confidential because prior to the time she became a licensed counselor on March 21, 1995, she practiced under the direction and supervision of a licensed psychiatrist, Israelstam.

¶ 25. The Johnsons moved to compel access to Charlotte's records, asserting that a public policy exception should be created to the therapist-patient relationship in cases like this. Alternatively, the Johnsons claimed that confidentiality did not apply to Phillips' records, and Charlotte otherwise waived her privilege and confidentiality rights by: (1) signing the limited release for her records; (2) providing medical bills to her parents that related to her treatment; (3) confronting her parents about the abuse during her therapy sessions; (4) telling her high school friend, Jain, that she was in therapy and being hypnotized; (5) filing a restraining order against her parents; (6) communicating with an attorney about commencing a suit against her parents for the abuse she believed she suffered.

¶ 26. The circuit court, the Honorable Daniel R. Moeser, denied the Johnsons' motion and eventually granted the defendant's summary judgment motions. The court declined the Johnsons' invitation to create a new exception to the therapist-patient privilege for cases such as these for four reasons.

¶ 27. First, the court began by acknowledging there is an exception to confidentiality of records in Wis. Stat. § 146.82(2)(a)ll (2001-02)⁶ when child abuse is suspected, but noted that this exception related narrowly to the disclosure of health records to the sheriff, police department, or district attorney for purposes of investigation or prosecution. Second, the court agreed with the Johnsons that privileges in general are to be narrowly construed, but concluded that the trend has been to expand the categories of health care providers covered by the privilege. Third, the court acknowledged the Johnsons' claim that there is little evidence that the "dangerous patient"⁷ exception to privilege and confidentiality caused psychotherapy to be less effective. Nevertheless, the court was persuaded that the general importance of maintaining the confidentiality of medical records surpassed the need for disclosure. Fourth, the court recognized that Sawyer gave third parties a cause of action against therapists for negligent therapy. However, the court was not persuaded that the therapist-patient privilege will generally impair the cause of action, because in many other cases the patient may have already waived the privilege or otherwise made the medical records available.

¶ 28. Turning to waiver, the circuit court disagreed that Charlotte waived her privilege. Regarding Phillips' lack of licensure, the court noted that the court of appeals in Locke held that the key consideration for privilege is the "patient's objectively reasonable perceptions and expectations of the medical provider." State v. Locke, 177 Wis. 2d 590, 604, 502 N.W.2d 891 (Ct. App. 1993). The court found that the Johnsons had not presented any evidence to establish Charlotte did not expect her communications with Phillips to be privileged. Concerning the release of the various medical records and therapy bills and Charlotte's disclosure that she was being hypnotized to Jain, the circuit court concluded that none of these disclosures constituted a "significant part of the matter or communication" under Wis. Stat. § 905.11. With regard to Charlotte's confronting the Johnsons about the abuse during therapy, the court held that the Johnsons' presence, as family members, did not abrogate the privilege. See Wis. Stat. § 905.04(2). The court also held that the presence of the "silent advocate" did not invade the privilege because that person was "present to further the interest of the patient" or was "participating in the diagnosis and treatment." See Wis. Stat. § 905.04(l)(b). Lastly, the court stated it was not convinced that the restraining order waived Charlotte's privilege.

¶ 29. The Johnsons appealed, and the court of appeals certified the case to us for a public policy determination of whether there ought to be an exception to the therapist-patient privilege when an adult child accuses her parents of physical and sexual abuse based on memories recovered during therapy, and the parents sue the child's therapists under a Sawyer third-party claim.

¶ 30. This court reviews a circuit court's grant of summary judgment de novo, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). The papers filed by the moving party must be carefully scrutinized. Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473 (1980). All reasonable inferences drawn from the underlying facts contained in these documents that are in the record must be viewed in the light most favorable to the non-moving party. See id. However, this court does not resolve issues of fact on summary judgment, but rather decides whether genuine issues of material fact exist. Id. at 338.

¶ 31. Whether Charlotte waived her privilege requires the application of undisputed facts to a legal standard. This is a question of law we review de novo. See Towne Realty v. Zurich Ins. Co., 201 Wis. 2d 260, 267, 548 N.W.2d 64 (1996). As a key factual dispute is whether Charlotte underwent recovered memory therapy, we cannot assume for purposes of our waiver discussion that recovered memory therapy occurred.

¶ 32. Additionally, whether public policy requires creating an exception to the therapist-patient privilege in order to sustain a third-party professional negligence cause of action against a therapist is a question of law we review de novo. See Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 42, 251 Wis. 2d 171, 641 N.W.2d 158; Sawyer, 227 Wis. 2d at 137; State v. Hydrite Chem. Co., 220 Wis. 2d 51, 59, 582 N.W.2d 411 (Ct. App. 1998).

HH HH

¶ 33. We begin with an overview of the confidentiality and privilege statutes at issue as well as the principle of waiver. A patient's health care records are confidential pursuant to Wis. Stat. § 146.82(1), which states:

All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient.

In general, "patient health care records" are defined as "all records related to the health of a patient prepared by or under the supervision of a health care provider ...." Wis. Stat. § 146.81(4). There are exceptions to this rule. Wis. Stat. § 146.82(2)(a) 1.-21. One exception provides that records can be released without the patient's informed consent, however, when required "[u]nder a lawful order of a court of record." Wis. Stat. § 146.82(2)(a)4. See Crawford v. Care Concepts, 2001 WI 45, ¶ 2, 243 Wis. 2d 119, 625 N.W.2d 876 (nonprivi-leged information can be released by order of a court of record).

¶ 34. In addition to the record's confidentiality, Wis. Stat. § 905.04(2) confers on a patient an eviden-tiary privilege:

to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, ... or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the ... psychologist....

The privilege applies "at all stages of all actions, cases and proceedings." Wis. Stat. § 911.01(3). The purpose of the privilege is to prevent unnecessary disclosure of "confidential" communications. Steinberg v. Jensen, 194 Wis. 2d 439, 459, 534 N.W.2d 361 (1995). Section 905.04(1)(b) defines confidential as follows:

A communication or information is "confidential" if not intended to be disclosed to 3rd persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication or information or persons who are participating in the diagnosis and treatment under the direction of the ... psychologist. . . including the members of the patient's family.

¶ 35. While confidentiality under Wis. Stat. § 142.82 is relinquished either by informed consent or by application of an exception, a testimonial privilege is waived where the person "while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication." Wis. Stat. § 905.11.

¶ 36. As the court of appeals observed in State v. Allen, 200 Wis. 2d 301, 309, 546 N.W.2d 517 (Ct. App. 1996), the information covered by Wis. Stat. § 905.04 and Wis. Stat. § 146.82 will overlap in many instances "because a patient's health care record under § 146.82 may often include a record of a confidential communication between the patient and a health care provider under § 905.04." As the court of appeals in Allen stated: "Reading the two statutes in pari materia, they represent a collective statement as to the reach and limits of the confidentiality and privilege which attach to such records or communications." Id. at 311. Because a cannon of statutory construction provides that where the more specific statute ordinarily controls over the more general statute, a patient does not waive the confidentiality in his or her confidential communications absent the more specific and more demanding requirement of furnishing informed consent.

¶ 37. The Johnsons contend Charlotte waived her privilege by: (a) signing the authorization for medical documents release; (b) providing her medical and treatment billing statements; (c) inviting the Johnsons into her therapy sessions for confronting them about the alleged abuse; (d) discussing her therapy with her high school friend, Jain; (e) filing a restraining order against the Johnsons; and (f) relaying certain information to her attorney when she contemplated civil action against the Johnsons for the abuse. We do not agree that any of these actions or disclosures caused Charlotte to waive her privilege.

A

¶ 38. We first consider the limited authorization Charlotte signed for disclosure of certain medical records and the accompanying records the Johnsons received as a result. As previously noted, health care records are confidential and shall not be disclosed absent informed consent or application of one of the exceptions. Wis. Stat. § 146.82.

¶ 39. Charlotte consented to release the "specific information listed here," which was limited to "medical (physical) tests; medications prescribed; general progress." Because Charlotte consented to disclose these records, any accompanying privilege associated with these records is waived.

¶ 40. However, Charlotte's hospitalization was for psychiatric treatment, not physical or medical treatment. Although Charlotte could have provided the Johnsons her records that related to her psychiatric treatment by marking the box on the authorization form that authorized disclosure of "records relating to treatment for psychiatric condition," Charlotte did not do so. Instead, she explicitly limited the authorization's scope. The Johnsons, nonetheless, inadvertently received records relating to Charlotte's psychiatric treatment.

¶ 41. The psychiatric admission note, consultation notes, and the discharge summary all included information regarding Charlotte's prior psychiatric care. Even the psychiatric admission note indicates that Charlotte "is very guarded about her information and does not want it shared with her parents or sisters at this time." As Charlotte clearly did not give her informed consent to release the "records relating to treatment for psychiatric condition," the hospital either should not have disclosed any records containing this type of information or redacted it. The hospital's inadvertence in disclosing these records cannot obviate the need for Charlotte's informed consent to disclose them. Because she did not give such consent, she could not have waived her privilege as to any confidential matter or communication with respect to those records. See Allen, 200 Wis. 2d at 310.

¶ 42. Even after viewing the information that was released by the hospital, however, we still are not persuaded that the records constitute a waiver of Charlotte's privilege. At most, the medical documents reveal Charlotte believes she has been a victim of abuse and that she previously underwent therapy at Rogers Memorial in November 1992. There is no discussion of

anything she said to her therapist, that her therapist said to her, or the type of therapy she underwent. Under these circumstances, we conclude that none of the records constitute a voluntary disclosure of "any significant part of the matter or communication."

B

¶ 43. Similar reasoning applies to the medical bills. Although there is an exception for disclosing medical bills without informed consent for billing, collection or payment of claims, Wis. Stat. § 146.82(2)(a)3., it does not follow that releasing these bills constitutes a waiver of the confidential communications made during the rendition of the services that lead to issuing the bill. And the bills themselves that Charlotte gave to the Johnsons simply identify who performed therapy, on which date, and for how long. No substance of any communications is listed on the statements. This does not constitute a disclosure of a significant part of the matter or communication. See Lane v. Sharp Packaging Systems, Inc., 2002 WI 28, ¶ 40, 251 Wis. 2d 68, 640 N.W.2d 788 ("Billing records are communications from the attorney to the client, and producing these communications violates the lawyer-client privilege if production of the documents reveals the substance of lawyer-client communications.").

C

¶ 44. Regarding Charlotte inviting the Johnsons to the therapy session to confront them about the abuse, Wis. Stat. § 905.04(l)(b) protects communications made to "persons who are participating in the diagnosis and treatment under the direction of the . . . psychologist... or professional counselor, including the members of the patient's family." Notably, the Johnsons submit that Charlotte was subjected to negligent therapy given that confrontations are indicia of "recovered memory therapy." As such, the Johnsons have conceded that the confrontations were part of Charlotte's treatment, even though they allege the treatment itself was negligent.

¶ 45. The fact that another person was in the room, the so-called "silent advocate," does not result in a waiver either. Charlotte's deposition reveals that this person was there to support Charlotte. According to Wis. Stat. § 905.04(l)(b), communications made in front of third persons are still confidential provided that the third person is "present to further the interest of the patient." Id. The silent advocate's presence, therefore, did not waive Charlotte's privilege.

D

¶ 46. Jain's affidavit also does not result in a waiver. The general assertions that Charlotte said she was "seeing a therapist" and "being hypnotized," without anything more, cannot reasonably be considered a voluntary disclosure of any significant part of a matter or communication. The privilege protects against disclosure of confidential matters or communications, and no such disclosure of "confidential" matters or communications can be inferred by the affidavit.

E

¶ 47. Neither does the restraining order constitute a waiver. The Johnsons observe that the allegations made to obtain a restraining order include "[t]hat the respondent engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner." See Wis. Stat. § 813.12(5)(a)3. As part of her petition for a restraining order, Charlotte attested that her parents were the perpetrators of incest and physical and emotional abuse. A year later, Charlotte asked that the order be extended for another year, writing "my parents . .. are perpetrators of incest and physical abuse which has created a condition diagnosed by my physicians as post-traumatic stress disorder." By making her emotional condition as being a survivor of incest and abuse an element of her restraining order claim, the Johnsons argue Charlotte waived her privilege. We disagree.

¶ 48. The waiver of privilege provision is found in Wis. Stat. § 905.11, and states:

A person upon whom this chapter confers a privilege against disclosure of the confidential matter or communication waives the privilege if the person or his or her predecessor, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication. (Emphasis added).

However, Wis. Stat. § 905.04(4)(c) establishes:

There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense. (Emphasis added).

Thus, although Charlotte previously relied on her emotional condition to obtain an injunction, she did not waive her privilege, since she did not have one. As such, there is nothing improper with Charlotte raising her privilege now.

¶ 49. Even if the allegations made in the petition for restraining order could somehow be construed as waiving something, just what was waived? The allegations were that "the respondent engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner." She stated that her parents were the perpetrators of incest and physical and emotional abuse. But there was no discussion or disclosure of medical records or treatment obtained, and certainly no disclosure of any "significant part of the matter or communication" between Charlotte and her therapist.

¶ 50. The only item that related to Charlotte's medical condition came a year later, when she sought to extend the restraining order for one year because "my parents ... are perpetrators of incest and physical abuse which has created a condition diagnosed by my physicians as post-traumatic stress disorder." While Charlotte disclosed the diagnosis, she did not disclose any confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental, or emotional condition. In short, she did not waive her privilege against disclosure of confidential matters or communications.

F

¶ 51. Lastly, the Johnsons argue that Charlotte's communications with her attorney regarding commencing an action against them for civil damages constitutes a waiver of Charlotte's privilege. During settlement correspondence before any lawsuit was filed,⁸ Charlotte's attorney wrote the Johnsons' attorney and stated, "I have no doubts as to the validity of repressed memories." This, the Johnsons contend, constitutes a waiver. We do not agree.

¶ 52. Charlotte's attorney's statement suggests Charlotte discussed the type of therapy she underwent. That communication, however, was also privileged. See Wis. Stat. § 905.03(2) (attorney-client privilege); Wis. Stat. § 905.11 (no waiver where subsequent communication is itself privileged). And because Charlotte was the holder of the attorney-client privilege, her attorney could not waive her privilege without her consent. See Wis. Stat. § 905.03(3); see also Harold Sampson Children's Trust v. Linda Gale Sampson 1979 Trust, 2004 WI 57, ¶ 46, 271 Wis. 2d 610, 679 N.W.2d 794 ("[0]nly the client can waive the attorney-client privilege under Wis. Stat. § (Rule) 905.11 regarding attorney-client privileged documents."). With there being no indication of Charlotte's consent, Charlotte's attorney could not have waived her therapist-patient privilege in the context of their attorney-client relationship.

IV

¶ 53. The Johnsons next contend that even if Charlotte did not waive her privilege, she has no privilege with regard to communications made to Phillips, as Phillips was not a licensed professional therapist until March 21, 1995, nearly four years after she began treating Charlotte. We disagree for two reasons.

¶ 54. As noted above, Wis. Stat. § 905.04(2) creates a privilege for communications made between the patient and the patient's physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist, professional counselor, or other persons participating in the diagnosis or treatment of the patient under the direction of the above-mentioned personnel. In Locke, 177 Wis. 2d 590, the court of appeals concluded that a defendant's statements to a social worker, a profession not explicitly listed under § 905.04(2), were privileged because the defendant reasonably believed that the social worker was working under the supervision of a psychiatrist. The court of appeals noted that "[t]he patient's objectively reasonable perceptions and expectations of the medical provider are the proper gauge of the scope of the sec. 905.04 privilege." Id. at 604 (citation omitted).

¶ 55. We conclude that Charlotte reasonably believed her communications with Phillips would be confidential with Phillips. Another individual, whose name Charlotte was advised by her attorney not to disclose on privilege grounds, referred Charlotte to Phillips for psychotherapy. Phillips presented herself as a psychotherapist and provided therapy through "Heartland Counseling Services and the Wisconsin Psychotherapy and Healing Center." Additionally, Charles attempted to interrupt one of Phillips' counseling sessions with Charlotte, only to be escorted off the premises by the police. Given these circumstances, sufficient evidence supports the conclusion that Charlotte reasonably believed her communications with Phillips would remain confidential.

¶ 56. Aside from Charlotte's reasonable expectations, her communications with Phillips are still privileged because Phillips was working "under the direction" of a "physician," specifically Israelstam. Wisconsin Stat. § 905.04(l)(d) defines physician as "a person as defined in s. 990.01(28), or reasonably believed by the patient so to be." Wisconsin Stat. § 990.01(28), in turn, defines physician as "a person holding a license or certificate of registration from the medical examining board."

¶ 57. It is undisputed that Israelstam was a licensed psychiatrist. Further, at his deposition, Israel-stam stated that he reviewed Phillips' diagnoses once a month and periodically reevaluated each patient's treatment plan. We agree with Phillips that this constitutes working under the direction of a physician.

V

¶ 58. Finally, the Johnsons argue that this court should create a public policy exception to the therapist-patient privilege and confidentiality for Sawyer claims. In Sawyer this court determined that there is a third-party negligence claim against a therapist whose treatment allegedly resulted in implanting false memories of child abuse. See Sawyer, 227 Wis. 2d at 129, 136. This court left open the question of whether confidentiality could defeat the cause of action in cases where the patient persists in invoking privilege. We agree that public policy requires that the therapist-patient confidentiality and privilege give way to Sawyer third-party negligence claims, but only in limited circumstances.

¶ 59. We begin with a discussion of the therapist-patient privilege. It is an evidentiary privilege, which "interfere^ with the trial's search for the truth[] and must he strictly construed, consistent with the fundamental tenet that the law has the right to every person's evidence." State v. Echols, 152 Wis. 2d 725, 736-37, 449 N.W.2d 320 (Ct. App. 1989). We have to be mindful that "this privilege must coexist in a judicial system seeking to find the truth, serve the interests of justice, and have all relevant information available for consideration by the fact-finder." Crawford v. Care Concepts, 2001 WI 45, ¶ 15, 243 Wis. 2d 119, 625 N.W.2d 876. Within this framework, we now turn to consider the therapist-patient privilege.

¶ 60. The public policy purpose of the privilege "is to facilitate communication between a patient and his or her health care providers." Id., ¶ 25. The privilege "encouraged patients to candidly discuss health concerns with those treating them." State v. Agacki, 226 Wis. 2d 349, 357, 595 N.W.2d 31 (Ct. App. 1999).

¶ 61. But the privilege is concerned with more than simply facilitating and encouraging discussion. The United States Supreme Court commented on the psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1, 10 (1996). After noting that the privilege is "rooted in the imperative need for confidence and trust," id. (citation omitted), the Court declared:

Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.

Id.

¶ 62. As the Court recognized, the privilege serves as a means to facilitate frank discussion in order to provide "effective psychotherapy," with the ultimate end aimed at "successful treatment." See id. When the end is divorced from the means, however, such that "negligent therapy" is left to flourish within the confines of the therapist-patient relationship, the privilege no longer serves its purpose. What was meant to be a device to help care for problems becomes a shelter to protect careless and negligent practices. The privilege cannot be distorted in this manner.

¶ 63. While we recognize the benefit from allowing therapists to diagnose and treat victims of sexual and physical abuse as children, no utility can be derived from protecting careless or inappropriate therapists and their practices. The costs are simply too severe: the therapist is allowed to continue negligently "treating" others, the patient remains disillusioned by the falsehoods, and the accused suffers the torment of being branded a child-abuser. We do not hesitate to conclude that mechanical application of the therapist-patient privilege to allow such results to continue unimpeded ill serves the public.⁹

B

¶ 64. We next turn to Sawyer, the case that recognized third-party professional negligence claims for implanting false memories of child abuse. After recognizing the cause of action, Sawyer described the serious and grievous harm associated with being branded a "child abuser." The Sawyer court called attention to Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 355 n.31, 565 N.W.2d 94 (1997), where this court acknowledged, "Society's justifiable repugnance toward sexual abuse of a child ... is the reason why a falsely accused defendant can be gravely harmed." Sawyer, 227 Wis. 2d at 143 (citation and alterations omitted). The same holds true for false accusations of physical abuse of a child. The Sawyer court also pointed out that "[o]thers have observed that it is indisputable that being labeled a child abuser is one of the most loathsome labels in society and most often results in grave physical, emotional, professional, and personal ramifications." Id. at 143-44 (citation and alterations omitted).

¶ 65. Considering the seriousness of being falsely accused a child abuser, we remain "quite confident that negligent treatment which encourages false accusations of sexual abuse is highly culpable for the resulting injury." Id. at 144. That culpability also weighs in favor of recognizing a public policy exception to the therapist-patient privilege in this case.

c

¶ 66. We are also persuaded by this court's previous determination that public policy can overcome the therapist-patient privilege. In Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988), this court upheld a third-party cause of action for a therapist's unreasonable failure to warn third parties of a patient's dangerous condition. Id. at 239-40. Schuster involved a therapist who did not inform a patient's family, specifically the patient's daughter and husband, of the patient's psychotic condition or its dangerousness. Id. at 226. As a result, the patient later was involved in a car accident that caused her death and significant injuries to her daughter. Id. at 227. The family sued the therapist for, among other third-party claims, failing to warn them of the patient's condition and its dangerous implications. Id. at 229. This court determined the family had a third-party negligence claim. Id. at 239-40.

¶ 67. Focusing on whether public policy limited liability, the therapist strenuously argued that the public policy of protecting the confidentiality of therapist-patient communications required precluding liability. Id. at 249. In rejecting the therapist's argument, this court acknowledged the valid concern for protecting therapist-patient confidentiality but ultimately focused on the nature of the injury to be remedied. The court stated that the confidentiality of therapist-patient communications "must yield in those limited circumstances where the public interest in safety from violent assault is threatened." Id. at 249.

¶ 68. The court also appealed to the various exceptions to the therapist-patient privilege in the evidence code. Id. at 250. After observing that there was a particular exception for mental illness hospitalization proceedings if the psychologist determines that the patient is in need of hospitalization, the court said, "[a]t the very least, the statutory exception to the eviden-tiary privilege suggests a balance struck by the legislature between patient confidentiality and public safety." Id. "More generally," the court continued, "the exception to the general rule of privilege demonstrates that the privilege is not sacrosanct and can properly be waived in the interest of public policy under appropriate circumstances." Id. (citation and quotations omitted).

¶ 69. Similar reasoning applies for creating an exception to the therapist-patient relationship in this case. Turning to the injury to be remedied, although Schuster involved physical injury, this court has since acknowledged the grievous harm associated with being falsely labeled a child abuser. See Sawyer, 227 Wis. 2d at 143-44.

¶ 70. And, as did the Schuster court, we observe that both the evidence code and the informed consent statute contain specific exceptions to confidentiality where child abuse is suspected. See Wis. Stat. § 146.82(2)(a)ll and Wis. Stat. § 905.04(4)(e). Although the Johnsons concede that neither exception is applicable here (as Charlotte was an adult when she underwent therapy), the exceptions nonetheless suggest a balance struck between confidentiality and investigating and determining whether child abuse has actually occurred. See Schuster, 144 Wis. 2d at 251. As the Schuster court stated, the exception at a minimum "demonstrates that the privilege is not sacrosanct and can properly be waived in the interest of public policy under appropriate circumstances." Id. (citation and quotations omitted).

VI

¶ 71. For these reasons, we conclude that public policy requires creating an exception to therapist-patient confidentiality and privilege where negligent therapy is alleged to have caused accusations against parents for sexually or physically abusing their child. Consistent with the significant purposes underlying the privilege, however, we are still concerned with maintaining and protecting the therapist-patient relationship to the greatest extent possible. Along similar lines, we also are sensitive to the implications of requiring a patient's records automatically be surrendered whenever a lawsuit such as this is commenced. Fishing expeditions cannot be allowed. Therefore, we further conclude that an in camera inspection of the patient's records is necessary. For guidance on how to fashion the prerequisites and parameters of this in camera inspection to limit the disclosure of privileged and confidential material, we turn to criminal law.

¶ 72. In State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, this court refined and heightened the standard to be applied when criminal defendants seek an in camera review of the victim's therapy records. After agreeing that in informant cases a defendant need only establish that the informant's testimony "may be necessary to a determination of guilt or innocence," this court held that "in light of the strong public policy favoring protection of the counseling records . . . a slightly higher standard is required before the court must conduct an in camera review of privileged counseling records." Id., ¶ 32. That higher standard required the defendant to "set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant." Id., ¶ 34. The evidentiary showing the defendant must set forth must describe as precisely as possible the information sought. Id., ¶ 33. Information is "necessary to a determination of guilt or innocence" if it "tends to create a reasonable doubt that might not otherwise exist." Id., ¶ 34. Prior to making that showing, the court reaffirmed "a defendant must undertake a reasonable investigation into the victim's background and counseling through other means first before the records will be made available." Id., ¶ 33.

¶ 73. If the defendant satisfies this standard, the trial court reviews the records only if the victim consents to the review. State v. Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775 (1997). If the victim does not consent, there is no in camera review and the victim is barred from testifying. State v. Shiffra, 175 Wis. 2d 600, 612, 499 N.W.2d 719 (Ct. App. 1993). If after the in camera review, the circuit court determines that the records contain relevant evidence, it should be disclosed to the defendant if the patient again consents. Solberg, 211 Wis. 2d at 386-87.

¶ 74. We employ a similar standard here, but modify it for application in a civil proceeding. We conclude the plaintiff must first commence a reasonable investigation into the type of therapy the plaintiffs child underwent before moving for an in camera review. This includes exploring whether the child has already waived the privilege or is otherwise willing to disclose the records. After the investigation, the plaintiff must set forth a good faith fact-specific basis demonstrating a reasonable likelihood that the records contain information regarding negligent treatment. This showing cannot be based on mere speculation or conjecture as to what information is in the records, and the information sought cannot be merely cumulative to that already available to the plaintiff. As part of the showing, the plaintiff should present evidence to provide the trial court with features of the negligent therapy believed at issue to help guide its in camera review.

¶ 75. Here is where we depart from the criminal law standard. If the plaintiff establishes a reasonable likelihood that the records contain information regarding negligent treatment, the circuit court must proceed to conduct an in camera review regardless of the victim's lack of consent. We deviate from the criminal law standard in this respect given the peculiarity of the cause of action at issue here. Again, this case presents a claim that essentially contends that Charlotte is the unsuspecting victim of falsely implanted and reinforced memories. To require Charlotte to give consent to open her medical records makes little sense considering that as a result of the negligent therapy Charlotte understandably wants nothing to do with her parents. We note that our procedure not only allows those who have been wrongfully accused a way to proceed with a Sawyer cause of action, but also ultimately enables the court to identify negligent therapists, which can only work to protect future potential victims from such negligent therapy. Bearing this in mind, we conclude that the victim cannot impede the claim.

¶ 76. The same holds true after the trial court concludes its in camera review: If the court finds information relevant to the plaintiffs claim, the court shall turn that information, and only that information, over to the plaintiffs. The therapist-patient privilege is also overcome, but only with respect to those disclosures. All other records not disclosed retain confidentiality and privileged status.

¶ 77. With this standard at hand, we remand the case to furnish the Johnsons with an opportunity to present a good faith fact-specific basis demonstrating a reasonable likelihood that the records contain information regarding negligent therapy. If the Johnsons satisfy the standard we articulate, the court must conduct an in camera review of Charlotte's records. And if that review uncovers relevant evidence, the trial court must turn that evidence over to the parties and the accompanying privilege is concurrently overcome as to that evidence.

VII

¶ 78. In sum, we conclude that Charlotte did not waive her therapist-patient privilege. We further conclude that Charlotte's communications with Phillips were privileged because of Charlotte's reasonable expectation that they would be and because Phillips worked under the direction of a physician. However, we conclude that there is a public policy exception to the therapist-patient privilege and to the confidentiality in patient health care records where negligent therapy causes false accusations against the parents for sexually or physically abusing their child. The exception is not unlimited and is implicated only where the plaintiff can establish a reasonable likelihood that negligent therapy occurred and the trial court after conducting an in camera review agrees that the records contain relevant information regarding negligent treatment.

By the Court. — Reversed and cause remanded for further proceedings consistent with this opinion.

¶ 79.

PATIENCE DRAKE ROGGENSACK, J., did not participate.

1 Chief Justice Shirley S. Abrahamson, Justices Ann Walsh Bradley and Louis B. Butler, Jr. agree with this conclusion. Justices Jon E Wilcox, N. Patrick Crooks, and David T. Prosser conclude that Charlotte waived her privilege. Justice Patience Drake Roggensack did not participate.

2 All participating justices agree with this conclusion.

3 Justices N. Patrick Crooks, David T. Prosser and Louis B. Butler, Jr. agree with this conclusion. Chief Justice Shirley S. Abrahamson and Justices Jon E Wilcox and Ann Walsh Bradley conclude that there is no public policy exception.

4 Three Justices, N. Patrick Crooks, David T. Prosser, and Louis B. Butler, Jr., agree with the in camera procedure under a public policy exception, irrespective of their positions regarding waiver. One Justice, Jon E Wilcox, concludes that there is no need for an in camera review because of Charlotte's waiver. Because there are four votes that would allow the Johnsons to proceed on their claim, and because the votes for in camera review represent the least restrictive means of enforcing this decision, the trial court should proceed, for purposes of this proceeding only, with the in camera review procedures described infra.

5 At her deposition, Charlotte also stated she now believes that her paternal grandfather raped her. Additionally, regarding the physical abuse, Charlotte indicated she believed her mother beat her using fists and tried to kill her with a knife and by drowning.

6 All references to the Wisconsin Statutes are to the 2001-02 version, unless otherwise noted.

7 See Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988), and Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. Rptr. 1976).

8 The lawsuit was never filed.

9 We also note that at oral argument, Reisenauer and Hollowell contended that it is "extremely paternalistic" for this court to be telling people what treatment is beneficial for their problems. Their contention misses the mark, however, because the allegation in this case is that Charlotte is an unsuspecting victim of falsely implanted, and reinforced, memories of particularly horrifying acts. That is to say, the allegation here presumes that the therapy precluded Charlotte from rationally determining whether the therapy was beneficial.

Finally, we do not intend to suggest that piercing the therapist-patient privilege in these circumstances will remedy all the wrongs that may have occurred. If Charlotte was indeed subjected to negligent therapy, that damage may now he irreparable.