Robert H. Aronson, Lonnie Rosenwald, and Gerald M. Rosen, Attorney-Client Confidentiality and the Assessment of Claimants Who Allege Posttraumatic Stress Disorder, 76 Wash. L. Rev. 313 (2001), https://digitalcommons.law.uw.edu/faculty-articles/391
Washington Law Review
attorney-client privilege, evidence, post-traumatic stress disorder, privileged communications
Posttraumatic Stress Disorder (PTSD) was first recognized by the American Psychiatric Association in 1980. A PTSD diagnosis requires an individual or individual's loved ones to have experienced a traumatic event that was a threat to life or physical integrity and caused the individual to react to the incident with a specific number of avoidance, reexperiencing, and hyper-arousal symptoms. Obtaining a PTSD diagnosis can be of great value to a personal-injury plaintiff who claims damages due to a traumatic event. Further, if the traumatic event is unquestioned and the individual reports the classic symptoms, a PTSD diagnosis is relatively easy to apply and difficult to disprove. These plaintiffs will most often be examined and evaluated by mental-health professionals retained by the defendants. The question of whether the claimant was told or provided materials about common PTSD symptoms is crucial to the defense evaluator's accurate PTSD assessment. One source of such information would be plaintiffs counsel, but questions concerning information provided by counsel implicate the attorney-client privilege.
This Article suggests that the policy bases underlying the attorney-client privilege and protecting a defendant's right to test the validity of a plaintiff's claims are best served by the creation of a narrowly drawn waiver or exception to the attorney-client privilege. Consistent with the patient-litigant exception to the physician-patient privilege, the proposed exception would be limited to those matters directly related to the nature, diagnosis, and symptoms of PTSD placed in issue by the plaintiff. The exception would also be limited to statements and materials about PTSD symptoms the attorney provided the client.
This Article also notes the difficult ethical boundary between an attorney providing essential advice to a client about the nature of emotional and psychological damages versus improper coaching. The proposed exception would help discourage improper coaching and lead to the discovery of any improper coaching that had already occurred. Even where the information provided by the attorney was appropriate from an ethical standpoint, discovery of that information is essential to an accurate diagnosis and fairness to defendants.