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DYNIN et al. v. HALL et al.
CARLEY, Presiding Judge.
Medical malpractice. Chatham Superior Court. Before Judge Brannen.
1. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . ." (Emphasis supplied.) OCGA 9-11-26 (b) (1). Psychiatric records are not absolutely privileged. See Donalson v. State, 192 Ga. App. 37, 38 (2) (383 SE2d 588) (1989). However, communications between a psychiatrist and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery. OCGA 24-9-21 (5); Freeman v. State, 196 Ga. App. 343 (396 SE2d 69) (1990).
2. Pursuant to OCGA 24-9-40, the psychiatrist-patient privilege may not be deemed waived simply because the patient's "care and treatment or the nature and extent of his injuries [have been put] at issue in any civil or criminal proceeding." See Wilson v. Bonner, 166 Ga. App. 9, 16 (5) (303 SE2d 134) (1983). Compare Boggess v. Aetna Life Ins. Co., 128 Ga. App. 190, 192 (3) (196 SE2d 172) (1973) (discussing waiver prior to enactment of OCGA 24-9-40).
3. In Bobo v. State, 256 Ga. 357 (349 SE2d 690) (1986), four Justices of the Supreme Court did not agree that the psychiatrist-patient privilege could be abrogated by a showing of "necessity." But see Brown v. State, 261 Ga. 66, 71 (Se) (401 SE2d 492) (1991). In any event, Bobo has no application in the instant case. That decision "is a plurality opinion holding that the statutory psychiatrist-patient evidentiary privilege must yield to a criminal defendant's constitutional right of confrontation, upon 'a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.' [Cit.]" (Emphasis supplied.) Salley v. State, 199 Ga. App. 358, 361 (2b) (405 SE2d 260) (1991). "Although the Supreme Court set up a balancing test to determine those rare instances when the privilege must yield to a fundamental constitutional right, the present civil dispute does not fall within the purview of [ Bobo v. State, supra]. [Cit.]" (Emphasis supplied.) Aetna Cas. &c. Co. v. Ridgeview Institute, 194 Ga. App. 805, 806 (1) (392 SE2d 286) (1990). The present civil dispute is governed by the Civil Practice Act. The privilege afforded psychiatrist-patient communications is "absolute, and if a matter is privileged it is not discoverable [under the Civil Practice Act]." Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144, 149 (1) (141 SE2d 112) (1965).
4. Even if Bobo were applicable in the instant civil case, appellees have nevertheless failed to make the requisite showing so as to authorize discovery of privileged psychiatrist-patient communications.
The privileged communications are certainly not "critical" to appellees' defense of the allegations that their malpractice caused the death of the decedent. Indeed, they are not even relevant to appellees' defense of those allegations. It is undisputed that, prior to her hospitalization, the decedent had taken an overdose of prescription drugs. Whether that pre-existing condition arose accidentally or intentionally would have no material bearing whatsoever on whether the decedent's eventual death was the actionable result of appellees' alleged subsequent malpractice. Martin v. Reed, 200 Ga. App. 775, 776 (5) (409 SE2d 874) (1991); Overstreet v. Nickelsen, 170 Ga. App. 539, 540 (1) (317 SE2d 583) (1984). The death was either the inevitable result of the decedent's previous ingestion of drugs or it was proximately caused by appellees' subsequent malpractice. If the death was the inevitable result of the drug overdose, the decedent was responsible for her own death and appellees are not liable regardless of whether the drugs were taken accidentally or intentionally. If, however, the death was the result of appellees' subsequent malpractice, appellees' liability would not be obviated merely because the decedent's pre-existing condition was caused by a failed suicide attempt rather than an accidental drug overdose. Appellees can meet their burden of proof by demonstrating that the death was not the proximate result of their alleged subsequent malpractice, but the proximate result of the decedent's pre-existing condition, without regard to how that condition arose. See Kirby v. Spivey, 167 Ga. App. 751, 755 (3) (307 SE2d 538) (1983).
5. The trial court's order is reversed insofar as it holds that privileged communications between the decedent and her psychiatrist are discoverable by appellees. The trial court's order is affirmed insofar as it allows appellees to proceed with discovery of non-privileged evidence relevant to the decedent's mental state. See Aetna Cas. &c. Co. v. Ridgeview Institute, supra at 805 (1); Annandale At Suwanee v. Weatherly, 194 Ga. App. 803 (392 SE2d 27) (1990).
Newton, Smith, Durden & Kaufold, Wilson R. Smith, Bouhan, Williams & Levy, James M. Thomas, Joseph A. Mulherin III, for appellees.
Thomas W. Bennett, Samuel G. Alderman III, for appellants.
Saturday May 23 13:25 EDT

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