Psychiatric/Psychological Privilege in Injury Cases in Georgia

Many times we represent clients’ who have been seriously injured in automobile, trucking or on-the-job accidents who have sought and received psychological or psychiatric counseling and treatment. During the course of litigation, insurance company lawyers often try to subpoena mental health records from mental health professionals. It is wise to be vigilant in monitoring these requests from insurance defense lawyers and to object to these requests.
Under Georgia law, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .” (Emphasis supplied) O.C.G.A. § 9-11-26(b)(1). Psychiatric records are not absolutely privileged. See Donalson v. State, 192 Ga. App. 37, 38 (2), 383 S.E. 2d 588 (1989). However, communications between a psychiatrist and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery. O.C.G.A. § 24-9-21(5); Freeman v. State, 196 Ga. App. 343, 396 S.E. 2d 69 (1990). The purpose of the psychiatrist-patient privilege is to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders. O.C.G.A. § 24-9-21 (5).
Pursuant to O.C.G.A. § 24-9-40, the psychiatrist-patient privilege may not be deemed waived simply because the patient’s “care and treatment or nature and extent of his injuries [have been put] at issue in any civil or criminal proceeding.” See Wilson v. Bonner, 166 Ga. App. 9, 16 (5), 303 S.E. 2d 134 (1983). In other words, the psychiatrist/patient privilege is not waived when an injured person, who claims it, is seeking to recover damages for injuries of a mental or emotional basis. Accordingly, if you are physically injured in an accident and you seek damages for your mental pain and suffering, you do not waive the psychiatrist-patient privilege and the insurance company is not entitled to anything that is privileged.