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Rosegay v. Canter

Decided: November 23, 1982.


Griffin, J.s.c.


Plaintiff Joyce Rosegay has brought this dental malpractice action against Drs. Mark Canter, Edward Bressman and Ira Ross. In the complaint and interrogatory answers, and at her deposition, plaintiff charged defendants with causing her "mental anguish, severe depression, severe anxiety attacks, insomnia, nervousness, irritability, personality change . . . and misery." Plaintiff also gave information at her deposition concerning psychological treatment she received from a psychologist, Sheila Dansz, and a psychiatrist, Dr. Richard Taylor, concurrent with her dental treatment. Defendants have moved to depose Dansz and Taylor but plaintiff claims that neither is to be called as an expert witness on her behalf and, therefore, any information they could give is privileged. Defendants contend that although a privilege exists, it has been waived by plaintiff. The court agrees.

Defendants seek discovery under R. 4:10-2(a) which permits

Thus, under the rule, the court must make three determinations: is it relevant, privileged, and has the privilege been waived?

The information sought is relevant. The test for relevance as set out in Myers v. St. Francis Hospital, 91 N.J. Super. 377 (App.Div.1966), is whether the matter is useful (at 386), or if it relates to issues in the case or to the credibility of a party (at 387). It need not be admissible itself, so long as it is relevant and can reasonably lead to discovery of admissible evidence. Gureghian v. Hackensack Hospital, 109 N.J. Super. 143 (Law Div.1970).

In addition to the contentions plaintiff made in her complaint and interrogatories concerning her mental state, she also stated in her deposition that she had first gone to see Dansz because of her husband's and her dentist's concern for her mental stability and the reasons for her pain. She discontinued her treatment with Dansz when the psychologist wanted to institutionalize her.

Thus, plaintiff has clearly made her mental condition, both at the time of treatment and currently -- an element of her claim. It is also relevant to defendants' defenses that plaintiff's complaints are exaggerated or based on problems that have no basis in dentistry. The testimony of Dansz and Taylor would be useful, would relate to plaintiff's credibility and to the issues in the case, and could reasonably lead to the discovery of admissible evidence of causation of plaintiff's alleged damages.

The more difficult issue concerns the claim of privilege. There is no doubt that a privilege exists between plaintiff and her doctors. However, the issue is whether that privilege has been waived by plaintiff's introduction of her psychological condition as an element of this case.

Plaintiff contends that the patient-psychologist and patient-psychiatrist privileges must be determined separately since they are treated in separate statutes. Plaintiff further contends that under the patient-psychologist privilege of N.J.S.A. 45:14B-28 the privilege is raised to the same degree as an attorney-client privilege, "and nothing in this act shall be construed to require any such privileged communication to be disclosed." N.J.S.A. 45:14B-28. Plaintiff contends that this statutory language exempts the patient-psychologist privilege from any disclosure, even those exceptions statutorily directed at the patient-physician privilege.

The court disagrees. It is obvious from the plain language of the statute that "this act" refers to Title 45 which deals exclusively with "Professions and Occupations," and not to the entire New Jersey statutes. The court must interpret a statute in accordance with its plain and ordinary meaning. Service Armament v. Hyland, 70 N.J. 550, 556 (1976). The statute embodies the Legislature's desire to assure that the patient-psychologist relationship would enjoy the same privileged status as the attorney and client or the physician and patient. There is no rational basis to conclude that the patient-psychologist privilege would be superior.

Furthermore, all privileges are dealt with under Evid.R. 26A. The comment under Evid.R. 26A-1 (the psychologist-privilege) states: "It is unclear whether all of the exceptions and limitations contained in the lawyer-client privilege, Rule 26, are applicable to the psychologist's privilege." The comment cites the difference in language between ...

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