Georgia law declares “communications between [a] psychiatrist and patient” privileged and therefore excluded as evidence in a civil proceeding. But what happens when the patient is deceased and his heirs have reason to believe the psychiatrist may be responsible? A divided Georgia Supreme Court recently addressed that question.
Cooksey v. Landry
A young man committed suicide in 2012. He had been under a psychiatrist’s care for many years. A month before the man’s death, the psychiatrist prescribed two common antidepressant drugs. These drugs carried what is known as a “Black Box Warning,” which is the strongest warning the Food and Drug Administration may require for a legal product. The FDA cautioned that use of these two drugs can lead to “an increased risk of suicidal thinking and behavior in young adults.”
Following his death, the man’s father was named administrator of his estate. Both of his parents then started looking into a possible cause of action against the psychiatrist for malpractice and wrongful death. But in order to bring a malpractice claim in Georgia, a medical expert must sign an affidavit describing that “at least one negligent act or omission claimed to exist and the factual basis for each such claim.”
The only way an expert could ascertain the “factual basis” for a malpractice claim would be to examine the deceased man’s psychiatric records. Accordingly, the parents asked a Georgia trial judge to issue an injunction requiring the psychiatrist to turn over their son’s records. The judge agreed and issued the injunction. The psychiatrist appealed.
By a vote of 5-2, the Georgia Supreme Court reversed the trial judge’s order. Chief Justice Hugh P. Thompson, writing for the majority, said, “unlike other recognized privileges, the psychiatrist-patient privilege survives the death of the patient.” Only the patient can waive the privilege. The Georgia legislature further emphasized this when it exempted psychiatric records from laws permitting disclosure of other health records to the personal representative of a deceased individual’s estate.
Justice Robert Benham, in a dissenting opinion joined by Justice Carol W. Hunstein, argued despite the law, “this Court should hold as a matter of public policy” that the father, acting as his son’s administrator, should have the authority to waive privilege in order to assert a possible claim against the psychiatrist whose conduct may have contributed to his death. The purpose of the privilege, Justice Benham said, “is to protect the patient, along with the public interest in promoting mental health care, not the doctor.”
But as the Chief Justice explained in the majority opinion, the psychiatrist cannot assert any privilege, only the patient. And as far as Georgia law is concerned, if the patient dies without waiving his privilege, the courts cannot assign it to his estate or heirs. In this case, the parents have no right under the law to access their son’s psychiatric records—even if it is to prove his psychiatrist may be liable for his death. Unfortunately, as Justice Benham noted in his dissent, this means a patient’s death deprives him (or his estate) of any ability to pursue a psychiatrist whose treatment clearly failed.