The “Physician-Patient Privilege,” which is like the attorney-client privilege, generally protects communications between patients and their doctors from discovery. However, an exception to the privilege applies when a party relies on a patient’s medical condition as part of their claim or defense and the communication or record is relevant to that medical condition. This exception drives litigation, where the parties exchange voluminous medical records, often without question, and only the rare assertion of privilege. But when exactly is a party relying on a patient’s mental or emotional condition as part of their claim or defense?

The Supreme Court of Texas shed light on these issues in a recent opinion, In re Richardson Motorsports, Ltd., 690 S.W.3d 42 (Tex. 2024). This opinion concerned a “bystander” claim for mental anguish damages brought by the decedent’s sister after she witnessed him crushed to death by an ATV purchased from the Defendant. The Defendant sought discovery of records from the sister’s psychological treatment that followed the accident; the trial court allowed such discovery, and the appellate court reversed, saying the records were privileged because no exception applied. The Supreme Court reversed the appellate court’s decision and found that, because the plaintiff’s mental condition was central to both parties’ claims and defenses, that at least some of the plaintiff’s psychological treatment records were discoverable.

Justice Busby reasoned that when a plaintiff claims mental anguish damages resulting from Defendant’s negligence, the plaintiff must provide evidence of same. Courts do not require plaintiffs to provide expert testimony to recover mental anguish damages, as other types of evidence such as lay testimony can be sufficient. But a patient waives the physician-patient privilege when she designates the physician as an expert testifying to the medical treatment they provided, because it shows the patient relies on the diagnosis, evaluation or treatment as part of her claim. So, when the court found that the sister designated her psychologist to help prove the mental anguish she sustained as a witness to her brother’s demise, treatment records relevant to the claim were discoverable. Because she did not amend or supplement this expert designation to remove the offer of expert testimony, her psychological treatment was still “in issue.” 

The Court also found the plaintiff’s psychological treatment records discoverable because the Defendant relied on her medical condition as part of its defense, which was made in good faith. Defendant Richardson alleged in its answer that the plaintiff’s mental anguish was caused by post-accident events such as her parents’ divorce and argued that the jury could attribute at least part of plaintiff’s emotional distress or mental anguish to these alternative causes, thereby reducing her damages award in this matter. When the Court reviewed plaintiff’s treatment records and found they discussed psychological disorders the plaintiff developed due to her parents’ divorce rather than witnessing her brother’s demise, the Court permitted discovery of the psychological treatment records for this reason—of course, the discovery was limited to records “reasonably related” to the underlying accident and not records of treatment for the subsequent events. The Supreme Court reversed the appellate court’s decision and remanded the case for further proceedings.

In litigation, plaintiffs regularly waive the physician-patient privilege because producing their medical records helps them prove damages. However, they occasionally assert the Physician-Patient privilege by redacting or refusing to produce records—when they do, first look at the damages claim in their petition. Then look at their expert designations.