The Patient-Litigant Exception in Psychotherapist-Patient Privilege Cases: New Considerations for Alaska and California since In Re Lifschutz
![handle is hein.journals/uclaak1 and id is 8 raw text is: THE PATIENT-LITIGANT EXCEPTION IN
PSYCHOTHERAPIST-PATIENT PRIVILEGE
CASES:' NEW CONSIDERATIONS FOR
ALASKA AND CALIFORNIA SINCE
IN RE LIFSCHUTZ
John M. Suarez* and Jan Huntt
In the 1970 case of In re Lifschutz the California Supreme
Court upheld a San Mateo Superior Court judgment of contempt
against a psychiatrist, Joseph E. Lifschutz, M.D., for his refusal
[Editors' note: Just before this article went to press, an article was published
which reviews the history and philosophy of the physician-patient and psychothera-
pist-patient privileges, and emphasizes the constitutional holdings in the Lifschutz
case. See Louisell and Sinclair, Reflections on the Law of Privileged Communications
-The Psychotherapist-Patient Privilege in Perspective, 59 CAL. L. REV. 30 (1971).]
* B.A., Columbia College, New York, 1956; M.D., Columbia University School
of Medicine, New York, 1960; M.S., University of California, Los Angeles, 1964.
Assistant Professor of Psychiatry, Department of Psychiatry and School of Law, and
Director, Section on Legal Psychiatry, University of California, Los Angeles.
*B.A., University of California, Los Angeles, 1969; Senior Editor, U.C.L.A.-
Alaska Law Review.
1 California's psychotherapist-patient privilege statutes were enacted in 1965.
The privilege is reprinted infra note 3, and the patient-litigant exception is reprinted
infra note 4.
Alaska has no psychotherapist-patient privilege, but does have a physician-patient
privilege which, depending upon the definition of physician, could be interpreted to
encompass the psychotherapeutic relationship, at least in cases involving the M.D.
psychiatrist. A physician or surgeon shall not, against the objection of his patient, be
examined in a civil action or proceeding as to any information acquired in attending
the patient which was necessary to enable him to prescribe or act for the patient.
ALAS. R. CIV. P. 43(h) (4). For purposes of this paper, the authors have assumed that
the psychotherapeutic relationship falls within this physician-patient privilege (at
least with regard to psychotherapists who hold an M.D. degree) rather than assuming
that Alaska affords this relationship no privilege at all.
Alaska has no statutory patient-litigant exception equivalent to that in California,
but in Mathis v. Hilderbrand, 416 P.2d 8 (Alaska 1966) and the subsequent case,
Security Industries, Inc. v. Fickus, 439 P.2d 172 (Alaska 1968), the Alaska Supreme
Court enunciated a common law patient-litigant exception, holding that the commence-
ment of a personal injury action constitutes a waiver of the physician-patient privilege.
See text accompanying notes 16-21 infra for a discussion of these cases.
Note that ALAs. STAT. ANN. § 23.30.095(e) (1962) is a patient-litigant exception
applicable only in Workmen's Compensation cases. It states:
No fact relative to the injury or claim communicated to or otherwise
learned by a physician or surgeon who may have attended or examined the
employee, or who may have been present at an examination is privileged,
either in the hearings provided for in this chapter or an action to recover
damages against an employer who is subject to the compensation provisions
of this chapter.
Note also that the only other exceptions to the physician-patient privilege are
ALAS. STAT. ANN. § 17.10.170(b) (1962) which provides that communications regard-
ing procurement of narcotic drugs are not privileged, and ALAS. R. CIV. P. 43(h) (8)
which waives the privilege (regarding a child's injury) in child abuse and neglect
cases.
2 In re Lifschutz, 2 Cal. 3d 415, 467 P.2d 557, 85 Cal. Rptr. 829 (1970).](ViewImageLocal?handle=hein.journals/uclaak1&div=8&collection=&method=preview&ext=.png&size=3)
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