The Psychotherapist-Patient Testimonial Privilege

In mid-1996, in Jaffee v. Redmond,1 the United States Supreme Court ruled that psychotherapists including social workers cannot be forced to testify or provide other evidence about their patients in federal court cases. A headline on page 1 of the New York Times said, “Justices Uphold Psychotherapy Privacy Rights.”2 Psychotherapists celebrated.

Fast backward to a bit of history. At common law (the “common law” is a phrase for court precedent rather than statutory law), the physician had no legal right or privilege to remain silent when called as a witness. The only two relationships given a testimonial privilege at common law were the attorney-client relationship and the husband-wife relationship.

In the United States the medical privilege was a statutory innovation originating in New York in 1828, a time when a person sedulously wanted to conceal from the community the fact that he was the victim of some “dreadful” disease that was rampant at the time. In the years following, legislatures of most other states enacted some form of medical privilege, protecting “communications” revealed by permitted examination or by word of mouth.

From the viewpoint of litigation, the medical privilege was of comparatively little importance when most of these statutes were enacted. At the turn of the 20th century, however, the development of life and accident insurance, workers' compensation, and liability of common carriers rapidly expanded the role of the medical privilege. Personal injury litigation came to represent approximately 90% of all litigated cases, and the medical privilege penetrated these cases.

As a consequence, insurance interests came into conflict with the privilege. Furthermore, strong antipathetic comment on the part of authorities in the law of evidence contributed to the privilege's unpopularity at law. Numerous exceptions were made by the courts to the privilege, to the extent