Cited Article
The Liability of Psychotherapists for Breach of Confidentiality
Case Citation
Runyon v. Smith, 749 A.2d 852 (N.J. 2000)
Background
Affirming the decision that a doctor violated psychologist-patient privilege by testifying at child custody hearing because nothing demonstrated children were exposed to danger of a degree that triggered statutory duty to warn.”
Article Publication Date
1997
Volume
12
Issue
1
Citing Quote
We generally try to avoid "unnecessary court events." State v. Shaw , 131 N.J. 1, 13, 618 A.2d 294 (1993). We should do that here. Although Kinsella had not been decided when the psychologist testified in the custody case, the trial court was fully aware of the principles of Kinsella when it dismissed the patient's subsequent complaint for malpractice. The trial court was also fully aware of the principles that govern a professional malpractice action against a psychologist. The plaintiff in a malpractice action based on tort must establish four elements to make out a prima facie case . . . . When the plaintiff is a patient and the defendant is the patient's therapist, Schultz tells us that the four key elements necessary to prove malpractice are: "(1) that a therapist-patient relationship was established; (2) that the therapist's conduct fell below the acceptable standard of care; (3) that this conduct was the proximate cause of the injury to the patient; and (4) that an actual injury was sustained by the patient." In the particular case of a patient suing a therapist for breach of confidentiality, the most difficult hurdles to overcome, showing malpractice has taken place, are "whether the standard of care to which the psychotherapist is obliged to conform encompasses confidentiality, whether the duty is breached by disclosure and whether recoverable damages are incurred." [Ellen W. Grabois, The Liability of Psychotherapists for Breach of Confidentiality, 12 J.L. & Health 39, 68-69 (1998).] Even assuming that plaintiff can establish by competent expert testimony that Dr. Smith's conduct fell below the acceptable standard of care, n1 no "recoverable damages" were incurred. Grabois, supra, 12 J.L. & Health at 69. In short, the Court has perceived the tip of the iceberg. The Court would do well to look under the surface of the water to perceive the formidable reasons why this case should be concluded. A futile rerun of the custody trial will only serve to reopen old wounds. It is time to end the discord. Lawsuits are not the solution to every problem. Ethics disciplinary boards are better suited to resolving this problem. For most licensed and trained psychotherapists, this confidential relationship will be spelled out in professional ethical codes and state statutes. Therapists, therefore, must be alert to situations in which they are called upon to reveal information about their patients. Therapists are protected by privilege statutes, but exceptions do exist. Psychotherapists must educate themselves with respect to these statutes, especially since we live in a time in which third party payors and others will seek to know more about the patient's prognosis and the usefulness of the psychotherapy. Patients, too, must be alert and inquisitive, and ask that their therapists inform them of any requests for confidential information. [Grabois, supra, 12 J.L. & Health at 84.]