Motion to Exclude Plaintiff's Mental Health Records

Below is a sample motion in limine to exclude the use of plaintiff's mental health records at trial.  

Generally, plaintiffs should not be ordered to provide authorizations to release mental health records or to allow the defendant to subpoena such records if the plaintiff's mental status or condition is not at issue. Of course, the battlefield is often whether mental health was put at issue by the plaintiff. 

Ideally, if you do not want to records to be produced at trial, you do not want the defendant to have discovery of the mental health records either.  You can also find on our website a sample motion to quash/protective order for plaintiff's therapist notes and other mental health records. 

Motion in Limine Exclude Metal Health Records

IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY

KRISTEN CARLTON
- Plaintiff,

v.

DAVIS MONROE, M.D., et al.
- Defendants.

Case No. CAL-12-133213

MOTION IN LIMINE TO EXCLUDE EVIDENCE OF MENTAL HEALTH TREATMENT

Plaintiff, Kristen Carlton moves to exclude any evidence of any mental health treatment the Plaintiff may have received in the past and in support thereof states as follows:

Argument

This case involves a claim of medical negligence arising out of a gallbladder operation performed by Defendant Monroe on January 31, 2017. Plaintiff was a 55-year-old retired woman who presented to the hospital with complaints of abdominal pain.

She was diagnosed with an infection and inflammation of the gallbladder. Dr. Monroe performed the gallbladder removal surgery and, Plaintiff alleges, cut and clipped the common bile duct, as well as cutting and clipping the cystic duct.

Plaintiff claims that Dr. Monroe breached the standard of medical care when she placed a clip(s) on and cut the Plaintiff’s common bile and cystic ducts, causing her a physical injury resulting in multiple procedures and a Roux-en-Y procedure.

The Defendant filed Notices of Depositions Duces Tecum to all of the Plaintiff’s medical providers. These subpoenas requested not only medical records but all mental health records. On July 15, 2017, this Court denied the Plaintiff’s Motion to Quash these subpoenas and the Defendant proceeded to subpoena all of the Plaintiff’s mental health records in what can only be described as a “fishing expedition.”

Plaintiff requested copies of any and all records received by the Defendant in response to her subpoenas which including the Plaintiff’s mental health records. As of this date, no mental health records have been produced.

The “fishing expedition” is over. The Defendant has not suggested nor proffered that any of the Plaintiff’s mental health care that she may have received in the past is relevant to any claim or defense in this case.

Discovery is over. The trial is four weeks away and the Plaintiff now incorporates by reference her previously filed Motion for a Protective Order into this Motion In Limine and requests that this Honorable Court preclude the Defendant from making any inquiries into the mental health treatment the Plaintiff may have received in the past.

For the reasons advanced above, Plaintiff asks that this court preclude any evidence of mental health treatment the Plaintiff may have received in the past.


Maryland Statute on Point 

Maryland statute on point to this is § 9-109(b) of Courts and Judicial Proceedings:

§ 9-109 - Communications between patient and psychiatrist or psychologist

(a)(1) “Authorized representative” means a person authorized by the patient to assert the privilege granted by this section and until permitted by the patient to make disclosure, the person whose communications are privileged.

(2) “Licensed psychologist” means a person who is licensed to practice psychology under the laws of Maryland.

(3) “Patient” means a person who communicates or receives services regarding the diagnosis or treatment of his mental or emotional disorder from a psychiatrist, licensed psychologist, or any other person participating directly or vitally with either in rendering those services in consultation with or under direct supervision of a psychiatrist or psychologist.

(4) “Psychiatrist” means a person licensed to practice medicine who devotes a substantial proportion of his time to the practice of psychiatry.

Communications relating to diagnosis or treatment of patient

(b) Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient's authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing:

(1) Communications relating to diagnosis or treatment of the patient; or

(2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment.

Incompetent patients

(c) If a patient is incompetent to assert or waive this privilege, a guardian shall be appointed and shall act for the patient. A previously appointed guardian has the same authority.

Disclosures and proceedings not privileged

(d) There is no privilege if:

(1) A disclosure is necessary for the purposes of placing the patient in a facility for mental illness;

(2) A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder;

(3) In a civil or criminal proceeding:

(i) The patient introduces his mental condition as an element of his claim or defense; or

(ii) After the patient's death, his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient;

(4) The patient, an authorized representative of the patient, or the personal representative of the patient makes a claim against the psychiatrist or licensed psychologist for malpractice;

(5) Related to civil or criminal proceedings under defective delinquency proceedings;

(6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing suit on a policy of insurance on life, health, or physical condition;

(7) In a criminal proceeding against a patient or former patient alleging that the patient or former patient has harassed or threatened or committed another criminal act against the psychiatrist or licensed psychologist, the disclosure is necessary to prove the charge;

(8) In a peace order proceeding under Title 3, Subtitle 15 of this article in which the psychiatrist or licensed psychologist is a petitioner and a patient or former patient is a respondent, the disclosure is necessary to obtain relief; or

(9) In an extreme risk protective order proceeding under Title 5, Subtitle 6 of the Public Safety Article in which the psychiatrist or licensed psychologist is a petitioner and a patient or former patient is a respondent, the disclosure is necessary to obtain relief.

The key language, of course, is the text in bold. 

Recent Opinions on Mental Health Discovery 
  • United States v. Fattah (3rd Cir. 2019):  A criminal defendant sought discovery of a cooperating witnesses mental health records. The trial court denied access to the records and the defendant was convicted.  The 3rd Circuit cited the Supreme Court for the proposition that the right to confrontation is a trial right, not a pretrial discovery rule.  This is a criminal case but the argument would be even stronger against a civil defendant seeking discovery of a witness' mental health records. 
  • Smithpeter v. Maryland Board of Physicians (MD Court of Special Appeals 2018):  A doctor accused of an inappropriate sexual relationship with a patient did not have the right to subpoena the patient's medical health records to defend himself in a disciplinary action by the Maryland Board of Physicians. 

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