California Appeals Court Holds Negligence Action Against Therapist is Barred by Litigation Privilege

Kimberley Cady and her daughters filed suit for negligence against their former therapist, Helen Cooper, a licensed clinical social worker (LCSW) based in Pasadena. The trial court granted Cooper’s motion for summary judgment, finding that the complaint was precluded by the one-year statute of limitations prescribed by the Medical Injury Compensation Reform Act (MICRA). The plaintiffs appealed. The California Court of Appeal for the second district affirmed, holding that apart from the MICRA issue, the lower court’s ruling was appropriate because the disclosure was permissible under the litigation privilege rule codified in California Civil Code section 47(b).

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The appeals court first recounted the evidence, which showed that during the dissolution of Cady’s marriage, the family court appointed therapist Vivian Carlson to make an assessment regarding custody. Cady authorized Cooper, her former therapist, to release information to Carlson to develop a parenting plan.

Carlson notified Cooper about the court’s order and the release. Cooper proceeded to disclose confidential information about plaintiffs Anastasia and Schuyler, Cady’s children from another marriage. (Cooper had provided therapy services to Anastasia and Schuyler when they were young.)

The plaintiffs moved to exclude the confidential information about Anastasia and Schuyler, since they were adults not related to the custody battle at issue. The court granted the motion and ordered that Carlson’s evaluation report be stricken from the court’s record.

Over a year later, the plaintiffs sued Cooper for negligence in Los Angeles Superior Court. The lawsuit alleged that Cooper erroneously uncovered Anastasia and Schuylers’ therapy histories and communications without their consent or authorization.

The defendant denied the allegations and moved for summary judgment, arguing that the complaint was barred by MICRA and also that the litigation privilege applied. The trial court granted the motion, based solely on MICRA.

It is of note that MICRA only creates a one-year statute of limitations for “professional negligence” claims; ordinary negligence claims have a two-year statute of limitations. Recently, in Flores v. Presbyterian Intercommunity Hospital, the California Supreme Court held that MICRA’s one-year statute of limitations for professional medical care negligence applied when the rails on a plaintiff’s hospital bed collapsed, rather than the two-year statute of limitations for general negligence. The state high court reasoned that when a doctor or another health care professional makes a judgment to order that a hospital bed’s rails be raised in order to accommodate a patient’s physical condition, and the patient is injured as a result of the negligent use or maintenance of the rails, the negligence occurs “in the rendering of professional services” and therefore is professional negligence.

In Cady v. Cooper, the appeals court first explained that the purpose of the litigation privilege rule is to grant litigants and witnesses free access to the courts without fear of subsequent harassment in tort actions, to promote open communication, to encourage whole and accurate testimony, to promote the finality of judgments, and to avoid continuous litigation.

The appeals court held that Cooper’s communications were covered by the absolute privilege of California Civil Code section 47(b). The disclosures were clearly communications made in a judicial proceeding. The object of the family law litigation was to develop a parenting plan that was in the best interest of the couple’s children, and Cooper’s disclosure was logically related to the family law custody dispute.

The court appointed Carlson to provide her assessment regarding lawsuit-related issues, including parenting. Inquiring about Cady’s parenting from the therapist who had provided therapy for Cady and her daughters as children was designed to further the litigation goal of determining a parenting plan. Thus, the confidential information was disclosed to achieve the objects of the litigation.

The appeals court concluded that since the communication was privileged, there was no genuine dispute of material fact, and therefore summary judgment was properly granted. Accordingly, it needed not address the applicability of MICRA or other issues briefed by the parties.

The personal injury lawyers at the Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.

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