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Privacy of Medical Records

In Koch v. Cox, Securities and Exchange Commission, – F.3d. –, 2007 WL 1713354 (C.A. D.C. June 15, 2007), the U.S. Court of Appeals for the District Court of Columbia Circuit held that a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression for which he is not seeking damages. In such a case, found the court, the defendant would not be entitled to the plaintiff’s mental health care providers’ records.

Mr. Koch sued his employer, the Securities Exchange Commission (SEC), alleging discrimination, retaliation and failure to accommodate his (physical) medical conditions. Mr. Koch sought relief including a permanent injunctions, affirmative relief and compensatory damages. However, he did not seek explicitly seek damages for “emotional distress.” Initially, Mr. Koch executed releases authorizing the SEC to obtain medical information from his health care providers, including his psychologist and social worker. Such releases, by their terms, could be revoked at any time prior to the information being released. Prior to the release of the information, Mr. Koch revoked the authorization and tried to quash the SEC’s subpoena seeking information from these medical providers. In response, the SEC argued that Mr. Koch had put his mental state in issue and thereby waived the psychotherapist-patient privilege.

The district court agreed, stating that Mr. Koch had not only placed his mental state at issue, but by signing the releases, could not retract them. The lower court granted the SEC’s motion to compel the medical providers’ testimony and ordered the production of all the records requested by the SEC. Mr. Koch filed a request for reconsideration while at the same time filing a motion explicitly withdrawing “any claim for emotional distress damages.” The district court denied the request for reconsideration without addressing the withdrawal of the damages claim. On appeal, Mr. Koch argued that he (1) did not impliedly or expressly waive the psychotherapist-patient privilege, and (2) the district court erred by ordering the testimony and records be produced after he withdrew his claim for damages. The court of appeals agreed with him on both theories.

As to the issue of “implied waiver,” the court addressed the lower court’s finding that although Mr. Koch did not make a claim for damages for emotional distress in his complaint, he placed his mental state at issue by stating that he suffered stress and depression in his response to interrogatories and at his deposition. The court then decided a critical question: does a plaintiff put his mental state in issue in such a way as to waive the psychotherapist-patient privilege by acknowledging he suffers from depression? The SEC argued that “any time it is possible” that a plaintiff’s mental medical condition may be a cause of his alleged physical condition, or even aggravate that condition, the plaintiff’s mental state is “at issue” and the privilege is waived.

The court disagreed. While finding that a plaintiff cannot selectively decide when to disclose confidential information in order to employ a privileged as both a “sword and shield,” the court held that “a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression for which he is not seeking damages, nor can the defendant overcome the privilege by putting the plaintiff’s mental state in issue.” However, a plaintiff who makes no claim for damages does place his mental state at issue when he takes action to waive the privilege such as basing his claim upon the psychotherapist’s communications with him.

As to the issue of “express waiver,” the court held that Mr. Koch’s waiver was revocable by its terms except to the extent that his psychotherapist had released information in reliance upon the waiver. Therefore, the Court held that the district court erred in finding that Mr. Koch had expressly waived his privilege by signing the release.

This article also appears in FEDweek (, a weekly newsletter for federal employees.