Runyon v. Smith

749 A.2d 852, 163 N.J. 439, 2000 N.J. LEXIS 524

• Court: Supreme Court of New Jersey
• Decided: May 10, 2000
• Status: Published

Opinions

PER CURIAM.

We affirm the judgment of the Appellate Division substantially for the reasons set forth in its comprehensive opinion. Runyon v. Smith, 322 N.J.Super. 236, 730 A.2d 881 (1999). We add these observations to clarify the basis for our disposition and to address the concerns of our dissenting colleagues.

We recognize the dissent’s concern about instances in which the psychologist-patient privilege must yield because of “the potential of harm to others.” Post at 442, 749 A.2d at 854 (O’Hern, J., dissenting). In Kinsella v. Kinsella, 150 N.J. 276, 316, 696 A.2d 556 (1997), adverting to that very concern, we observed that “[bjecause of the unique nature of custody determinations, the scope of the patient-psychiatrist privilege that may be claimed by parents in relation to custody issues poses more difficult problems than those posed by the scope of the privilege in other situations.” We specifically acknowledged in Kinsella that courts in custody disputes “must strike a balance between the need to protect children who are in danger of abuse and neglect from unfit custodians and the compelling policy of facilitating the treatment of parents’ psychological or emotional problems.” Id. at 327, 696 A.2d 556.

We are not prepared on this inadequate record to agree unqualifiedly with the Appellate Division’s conclusion that, even absent Dr. Smith’s testimony, “there was sufficient evidence from plaintiffs friend and from Mr. Runyon to justify awarding temporary custody of the children to Mr. Runyon.” 322 N.J.Super. at 245, 730 A.2d 881. We simply cannot assess in hindsight whether the testimony of Mr. Runyon and that of plaintiffs friend provided an adequate basis for the Family Part’s temporary custody award. Nevertheless, all parties acknowledge that the Family Part did not conduct the in camera review contemplated by Kinsella, 150 N.J. at 328, 696 A.2d 556, and apparently did not make the appropriate determination on the record that evidence of fitness from other sources was inadequate. We also acknowledge that the hearing in question took place more than two years before Kinsella was decided. However, we cannot turn back the clock and determine now whether adherence to the Kinsella standards and procedures would have permitted the privilege to be pierced. Indisputably, those standards and procedures were not observed. We therefore conclude, as did the Appellate Division, 322 N.J.Super. at 246, 730 A.2d 881, that “Dr. Smith’s testimony at the January hearing and her subsequent report violated the psychologist-patient privilege.”

We acknowledge that in certain circumstances a psychologist may have a duty to warn and protect third parties or the patient from imminent, serious physical violence. As part of that duty, the psychologist would be required to disclose confidential information obtained from a patient. See N.J.S.A. 2A:62A-16. Nothing in this record demonstrates that the children were exposed to danger of a degree that approached the level of danger that triggers the statutory duty to warn. Moreover, Dr. Smith’s testimony occurred about six months after her last session with plaintiff. That six-month interval is itself inconsistent with the statutory standard of “imminent serious physical violence.” N.J.S.A. 2A:62A-16b(1).

We also are in accord with the Appellate Division’s conclusion that a psychologist who fails to assert her patient’s privilege and discloses as a witness confidential information concerning that patient without a court determination that disclosure is required may be liable for damages to the patient. See Stempler v. Speidell, 100 N.J. 368, 375-77, 495 A.2d 857 (1985) (discussing liability of physicians in general for unauthorized disclosure of confidential information). The dissent argues persuasively, however, that plaintiff incurred no recoverable damages as a result of Dr. Smith’s disclosures, asserting that the result of the custody dispute would have been the same even if her testimony had been excluded. Post at 444, 749 A.2d at 855 (O’Hern, J., dissenting). That plaintiff may not prevail on her claim for damages does not affect her right to pursue it. Because the issue is not before us, however, we express no view on the merits of plaintiffs claim.

Affirmed.