Summary:

Colorado law strongly protects mental health treatment records in personal injury cases, requiring plaintiffs to assert particularized psychological claims beyond generic emotional distress before any waiver occurs that allows mental health treatment records to be used in discovery. Even then the Court should limit discovery to records directly related to the claims asserted.

—-

Often times, a claimant’s mental health treatment history can be relevant in a personal injury claim where a client specifically claims (1) that the defendant caused a mental health condition; (2) an increase in symptoms for a pre-existing mental health condition; (3) economic losses relating to mental health treatment; and/or (4) or decline in cognitive function from chronic pain or a traumatic brain injury.” This has particular implications for the pre-trial discovery part of the claims process – when both sides can request information, documents, and records from each other.

The Limits of Psychotherapist/Patient Privilege in Discovery

Colorado law protects the disclosure of mental health treatment records through the psychotherapist-patient privilege codified in C.R.S. § 13-90-107(1)(g), which prevents psychotherapists from being asked  about  anything the patient shared during treatment without patient consent . In personal injury cases, the critical issue regarding whether mental health treatment is discoverable is whether a plaintiff has impliedly waived this privilege by placing their mental condition “in controversy.” A waiver is when a plaintiff’s own legal claims are interpreted as giving up a protection they didn’t explicitly agree to surrender. 

Colorado courts have interpreted “in controversy” narrowly to protect the confidentiality essential to effective psychotherapy. Colorado’s psychotherapist-patient privilege statute provides that a psychotherapist “shall not be examined without the consent of” the patient “as to any communication made by the client to the” psychotherapist. C.R.S. § 13-90-107.

The privilege applies broadly and extends beyond testimonial communications to shield “files or records derived from or created during the course of ongoing mental health treatment” from pretrial discovery. L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013). The privilege also applies to various mental health professionals, including psychologists, social workers, and professional counselors. People v. Johnson, 381 P.3d 316 (Colo. 2016).

For Records to be used in Discovery, a Waiver Must Be Clear

The Colorado Supreme Court has established that the proper inquiry for determining waiver is “whether plaintiff, by seeking damages for mental suffering, injected her mental condition into case.” Hoffman v. Brookfield Republic, Inc., 87 P.3d 858 (2004).  

This standard requires more than merely claiming generic emotional distress damages that naturally flow from the claimed physical injuries. In Johnson v. Trujillo, the court held that “generic damage claims for mental suffering are insufficient to place a litigant’s mental condition ‘in controversy.'” 977 P.2d 152 (Colo. 1999). The court emphasized that “relevance alone cannot be the test” for overcoming the privilege. Alcon v. Spicer, 113 P.3d 735 (Colo. 2005).  

Colorado courts consistently hold that typical personal injury claims for pain, suffering, and emotional distress do not constitute implied waiver. In Hoffman v. Brookfield Republic, Inc., the Supreme Court ruled that even when a plaintiff explained “the nature of her suffering and emotional distress” with details about how injury affected her mental state and quality of life, this did not “transform her generic claim for mental suffering into a peculiar assertion of psychological damages” 87 P.3d 858.

Similarly, in Weil v. Dillon Companies, Inc., the court held that “bare allegations of mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life did not inject” the plaintiff’s mental condition so as to waive physician-patient privilege. 109 P.3d 127 (Colo. 2005).

How the Mental Health Waiver Works 

Waiver occurs when a privilege holder “has injected his physical or mental condition into the case as the basis of a claim or an affirmative defense.” Clark v. District Court, 668 P.2d 3 (Colo 1983). This requires the plaintiff to assert unique or particularized psychological damages beyond those typically associated with physical injuries. Even when waiver is found, it extends only to records “relating to specific claims alleged in the lawsuit” and not to all mental health records. Alcon v. Spicer, 113 P.3d 735 (Colo. 2005).  

When a plaintiff does waive the privilege by seeking mental suffering damages, courts must still balance competing interests before ordering disclosure. In Bond v. District Court, the Supreme Court held that trial courts must balance “plaintiffs’ interest in protecting confidentiality of their communications against the defendant’s interest in obtaining sufficient evidence to contest damage claims for mental suffering and emotional distress.” 682 P.2d 33 (Colo. 1984).  

Courts should consider whether disclosure would cause embarrassment and oppression, the sensitive nature of communications, and possible adverse effects on ongoing therapy. Bond, 682 P.2d 33.  When privilege is waived, discovery is limited to records directly related to the mental conditions placed in controversy. Courts have rejected attempts to obtain comprehensive mental health histories spanning many years when only recent injury-related treatment is at issue. Hoffman, 87 P.3d 858.   Records “wholly unrelated to” the injuries and damages claimed remain privileged. Weil, 109 P.3d 127.