Academic journal article Washington Law Review

Don't Say Depression: Specific Diagnosable Injuries under the Washington Law against Discrimination's Privilege Statute

Academic journal article Washington Law Review

Don't Say Depression: Specific Diagnosable Injuries under the Washington Law against Discrimination's Privilege Statute

Article excerpt


Debate surrounds what role physician- and psychotherapist-patient privilege should play in litigation where a plaintiff seeks emotional distress damages.4 Defendants argue the privileged communications are relevant to causation because the alleged emotional distress might be caused or exacerbated by pre-existing medical or emotional conditions.5 Plaintiffs claim, on the other hand, that they should be allowed to seek emotional distress damages without disclosing their communications with counselors and doctors because such discovery is unnecessarily invasive.6 In federal court, much of the debate arises from civil rights litigation.7 Some argue plaintiffs will be unwilling to pursue civil rights cases if privilege is waived.8

In 2018, Washington State took a side in the privilege debate. The Washington State Legislature enacted an amendment to its Law Against Discrimination ("WLAD").9 This amendment, RCW 49.60.510, altered the common-law waiver standard concerning the physician- and psychologist-patient privilege waiver adopted in Lodis v. Corbis Holdings, Inc.10 Under Lodis, a plaintiff waived their physician- or psychologist-patient privilege merely by seeking noneconomic damages for emotional distress.11 The new statute prevents waiver under such circumstances.12 Instead, in order for there to be a waiver of privilege, the plaintiff must (1) allege a "specific diagnosable physical or psychiatric injury" proximately caused by the defendant, (2) rely "on the records or testimony of a health care provider or expert witness to seek general damages," or (3) allege "failure to accommodate a disability" or allege "discrimination on the basis of a disability."13

This Comment focuses on the first exception: when the plaintiff alleges a "specific diagnosable physical or psychiatric injury."14 What constitutes a specific diagnosable injury is far from clear and the new statute provides no guidance.15 For example, it is unclear if a plaintiff waives privilege when the alleged emotional experience is symptomatic of a psychiatric condition.16 A reasonable interpretation of the statute would require a plaintiff to allege in their complaint a specific condition-like Post-Traumatic Distress Disorder-to waive privilege. Still, an equally reasonable interpretation of the statute would find waiver if a plaintiff said they felt anxious because General Anxiety Disorder is a diagnosable condition.17 Fundamentally, this Comment seeks to address the ambiguity of the new statute and provide a framework for parties and courts interpreting RCW 49.60.510.

RCW 49.60.510 is best understood in the context of the privilege debate outlined above. It mirrors the compromise adopted by some federal courts known as the "garden variety" standard.18 These federal courts allow a plaintiff to maintain privilege while seeking emotional distress damages if the alleged emotional distress is "garden variety."19 Garden variety distress has many definitions,20 but is generally defined as the emotional experience an ordinary person would experience as a result of the defendant's conduct.21 The garden variety standard seeks to allow plaintiffs to recover for "incidental" or "intrinsic" emotional distress while maintaining their psychotherapist-patient privilege.22

Still, the garden variety standard, although attempting to appease both sides, is not without criticism. For example, the garden variety standard does not readily clarify which emotional experiences are considered garden variety, and which are not.23 Therefore, it does not provide useful guidance to litigants as to whether privilege will be waived.24

This Comment argues that the "specific diagnosable" injury requirement of RCW 49.60.510 similarly attempts to allow plaintiffs to recover for incidental emotional distress damages without waiving privilege. In that way, the new statute adopts the garden variety standard and federal case law may provide some guidance to determine the scope of specific diagnosable injuries under WLAD. …

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