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Widow Not Required to Disclose Personal Journal in Wrongful Death Lawsuit

The family of a person who dies due to medical malpractice may bring a wrongful death lawsuit against the negligent health care providers. Doctors and hospitals are often resistant to admitting any liability in the death of a patient, and they may attempt to use the discovery process to obtain embarrassing information about the deceased—or a family member—that is not relevant to the underlying case. The Georgia Court of Appeals recently addressed such a case.

Gwinnett Hospital System, Inc. v. Hoover

The plaintiff in this case is a widow who died while under the medical care of the defendant hospital. She subsequently filed a wrongful death lawsuit against the defendant. The case has not yet proceeded to trial. During pretrial discovery, a dispute arose over a journal kept by the plaintiff.

After her husband’s death, the plaintiff started receiving grief counseling from a licensed associate professional counselor, who in turn acted under the supervision of a licensed professional counselor. The associate counselor suggested the plaintiff keep a “grief journal.” The plaintiff disclosed the journal’s existence during a pretrial deposition with defense counsel.

The defense demanded the plaintiff produce the journal as part of the discovery process. The plaintiff refused. The defense then asked the trial judge to compel production. The judge declined to do so.

The defense appealed. The Court of Appeals upheld the trial judge’s decision. The appeals court concurred with the plaintiff and the trial court that the journal was a “privileged” communication not subject to discovery.

Georgia law recognizes a number of legal privileges in civil cases. For example, any communications between a husband and wife or an attorney and client are considered privileged. This means they cannot be used as evidence unless the party holding the privilege agrees to waive it.

There is also a legal privilege for “[c]ommunications between a … licensed professional counselor and patient.” The plaintiff here cited this privilege in refusing to disclose her journal, a document prepared on the advice of her counselor during a therapy session. The defendant argued the privilege should not apply because the plaintiff received advice from an “associate licensed professional counselor” rather than a “licensed professional counselor.” An associate counselor, the Court of Appeals explained, is someone who is “studying to become a licensed professional counselor.”

The Court went on to say this distinction was irrelevant in terms of establishing privilege. A licensed professional counselor had referred the plaintiff to the associate counselor. The plaintiff “remained the licensed professional counselor’s patient” at all times, and the journal was an integral part of her “treatment plan.” The associate counselor was therefore an “agent” of the licensed counselor.

The Court of Appeals went on to clarify that privilege extended to an “agent” of a licensed professional counselor in much the same way the attorney-client privilege applies to agents of an attorney. For instance, if you communicate information to your personal injury lawyer’s paralegal, that is considered just as privileged as if you had communicated the same information directly to your lawyer. The fact that the paralegal is not a licensed attorney does not constitute a waiver of attorney-client privilege.