Legal News

Gerner v. Superior Court (Department of Consumer Affairs) (Recent decision on psychotherapist-patient privilege in the context of a complaint to the Medical Board of California)

In a decision that could have significant impact on Medical Board of California (MBC) investigations of psychiatrists, Division One of the Second Appellate District recently held the exception to the physician-patient privilege found in Business and Professions Code (B&P) Section 2225 does not apply to a patient’s psychotherapist-patient privilege set out in Evidence Code (Ev.C) section 1014. In Gerner v. Superior Court (Department of Consumer Affairs) (2016) 16 C.D.O.S. 7380, a patient of psychiatrist Robert Hugh Gerner, M.D. submitted an online complaint against the psychiatrist, signed an authorization for release of his records to the MBC, then later “rescinded” his complaint and directed the doctor not to disclose the records. The MBC served Dr. Gerner with a subpoena and a declaration by the MBC’s expert, an internist, stating there was good cause for production of the records to the MBC. However, the doctor asserted the psychotherapist-patient privilege on the patient’s behalf and refused to produce the records. The MBC sought an order from the trial court compelling compliance with the subpoena, which the trial court granted. Dr. Gerner then sought a writ of mandate. The appellate court granted Dr. Gerner’s petition for a writ of mandate and directed the trial court to enter an order denying the Medical Board access to Dr. Gerner’s records.

Business and Professions Code section 2225(a) provides in part: “Notwithstanding Section 2263 and any other law making a communication between a physician and surgeon or a doctor of podiatric medicine and his or her patients a privileged communication, those provisions shall not apply to investigations or proceedings conducted under this chapter.” Based on that section, and pursuant to the patient’s complaint, the MBC sought Dr. Gerner’s patient’s records. In an opinion full of citations to decisions and statutes involving the privacy rights of psychotherapy patients, the court found section 2225 does not apply to the psychotherapist-patient privilege. The MBC had argued that because psychiatrists were licensed physicians, section 2225 should apply. The court rejected that argument and pointed out that such an application of section 2225 would lead to the incongruous result that the privilege under Ev.C. section 1014 would be available to social workers and clinical psychologists, but not to licensed psychiatrists in investigative proceedings.

The court emphasized the plain language of section 2225 “does not purport to apply to the psychotherapist-patient privilege.” It noted throughout the decision that “the psychotherapist-patient privilege must be construed liberally in favor of the patient’s right to privacy.” In order to determine a patient has lost that protection, a finding of “good cause” is insufficient; the constitutional privacy protections in California require a finding of “compelling interest” before access to that protected information may be granted without the patient’s consent. Further, the court found no “statute analogous to section 2225 creates an exception to the psychotherapist-patient privilege for investigative subpoenas such as that involved in this proceeding.” The court said it was not aware of any “decision holding that section 2225 provides such an exception.”

Of note, the issue of whether the patient waived his right to exert the privilege was not argued at the trial court level or briefed to the appellate court, despite the fact the patient listed multiple aspects of his communications with Dr. Gerner around the complaints about prescribing practices in the online complaint form. Nonetheless, the appellate court took up the issue of waiver and discussed it at some length. It emphasized that waiver of such an important privacy right “must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences.” Here, the patient may have listed some details of care with Dr. Gerner, but he later withdrew his complaint and instructed the psychiatrist not to provide his records to the MBC. Significantly, the MBC authorization form signed by the patient provided he “had the right to revoke” the authorization. The court felt the patient’s disclosures were “conditional, and his exercise of that condition by withdrawing his authorization could be interpreted to have negated any waiver resulting from the authorization. If withdrawal of his authorization for disclosure of his treatment records to the Board cannot in fact prevent disclosure of his treatment records, what was the meaning and purpose of the Board’s representations and promises about his right to withdraw his authorization?” (Emphasis added.)

Another interesting point raised by the court was that the patient’s complaint to the MBC “did not purport to seek redress (as would trigger the psychotherapist-litigant exception); and even if it were construed to do so, it might well be construed as a disclosure necessary ‘for the accomplishment of the purpose for which the psychotherapist is consulted,’ precluding any waiver.”

There was a vigorous dissent. The dissenting justice said the applicable standard of review was whether there was an abuse of discretion by the trial court in allowing access by the MBC to Dr. Gerner’s medication and prescription records, since the complaint was about prescribing practices. The dissenting justice felt the patient’s detailed complaint about Dr. Gerner’s prescribing practices amounted to a waiver of a privilege around that issue. In addition, by “writing prescriptions, Dr. Gerner was acting in his capacity as a physician and was subject to investigation by the Board for alleged misconduct.” Also, at oral argument, counsel for the MBC “agreed the Board’s interest would be satisfied by enforcement of the subpoena limited to Dr. Gerner’s prescriptions and treatment of the patient for ADHA, rather than requiring production of the entirety of the patient’s treatment records.” (Emphasis in original). The dissenting justice noted that counsel’s concessions at oral argument are binding on a client, and was perplexed that the majority did not take this concession into consideration.

This is an important decision for anyone who advises psychiatrists in MBC or other investigative settings in which the patient seeks no “redress” and therefore the psychotherapist-litigant privilege exception might not apply. Even when it the exception could apply, in light of this decision (where consent was given but later withdrawn, and there was arguably a waiver of the right to privacy as to the doctor’s prescribing practices) it would be wise to obtain clear patient authorization or a court order before advising a psychiatrist to release psychiatric records.

A complete copy of the Opinion can be found online at:

For more information on this and other recent decisions, please reach out to Reneé A. Richards.