In 'repressed memory' case, Wisconsin court sets privilege aside.

The Wisconsin Supreme Court has ordered a hospital to hand a patient's medical records over to her parents, whom she has accused of physically and sexually abusing her. The court found that the woman's therapists may have negligently implanted the abuse memories as part of her "therapy" and that, on public policy grounds, her parents' right to clear their names trumped the doctor-patient privilege.

In an opinion by Justice Daniel Moeser, the court said its ruling will help "to identify negligent therapists, which can only work to protect future potential victims from such negligent therapy." (Johnson v. Rogers Mem'l Hosp., 700 N.W.2d 27 (Wis. 2005).)

"This opens the door to a new cause of action," said William Smoler, a Madison lawyer who represented the accused parents. He likened the ruling to a landmark 1976 decision, Tarasoff v. Regents of the University of California, in which the California Supreme Court held that a psychotherapist had a duty to warn a woman that his patient intended to kill her. (551 P.2d 334 (Cal.1976).)

"Tarasoff said you can't hide behind privilege," said Smoler. "This decision is just as important a contribution to jurisprudence."

In 1991, Charlotte Johnson began treatment for eating disorders and depression. Later she transferred to Rogers Memorial Hospital in Oconowomoc, Wisconsin. During therapy, Charlotte came to believe that her parents had physically abused her as a child, and that her father, Charles, had also sexually abused her. Charlotte was undergoing recovered-memory therapy (sometimes called repressed-memory therapy, or RMT), a controversial and now largely discredited technique that claims to uncover deeply buried memories of abuse. Critics say the memories are iatrogenic--that is, created by the therapy itself and not based on real events.

Part of RMT involves "confronting" one's abusers in person. In 1991, Charlotte invited her father to a meeting with her therapists and a "silent advocate," where she accused her father and her grandfather of sexually abusing her. In 1993, she "confronted" her mother with accusations of physical abuse.

Shortly afterward, Charlotte's parents filed a lawsuit against her therapists and Rogers Memorial, claiming that irresponsible therapy had led to the false allegations. In their depositions, the therapists and Charlotte asserted privilege, saying they couldn't discuss the details of her treatment.

The Johnsons then moved to compel access to Charlotte's records on public policy grounds. They also argued that Charlotte had waived her privilege by providing medical bills to her parents (who were paying for the therapy), "confronting" them, filing a restraining order against them, and discussing a potential lawsuit against them.

While the appeals court was reviewing this case, the Wisconsin Supreme Court decided another one, Sawyer v. Midelfort, which allowed third-party professional negligence claims against therapists by parents accused of sexual abuse. (595 N.W.2d 423 (Wis. 1999).)

Smoler, who also represented the Sawyer plaintiffs, said, "The one question that case did not address is, Can you crack privilege? And the court in that ruling predicted that the question would come up again in a privilege claim."

In Johnson, a divided court found that Charlotte had not waived her privilege. But it compelled access anyway, noting that the purpose of privilege is to "provide effective psychotherapy" and that when "negligent therapy is left to flourish within the confines of the therapist-patient relationship, the privilege no longer serves its purpose. What was meant to be a device to help care for problems becomes a shelter to protect careless and negligent practices. The privilege cannot be distorted in this manner."

The court acknowledged the importance of confidentiality in sensitive matters such as incest and abuse and also the enormous harm caused by false allegations.

"No utility can be derived from protecting careless or inappropriate therapists and their practices," the court said. "The costs are simply too severe: The therapist is allowed to continue negligently treating others, the patient remains disillusioned by falsehoods, and the accused suffers the torment of being branded a child-abuser. We do not hesitate to conclude that mechanical application of the therapist-patient privilege to allow such results to continue unimpeded ill serves the public."

"What's most important here is that the court recognized that it was creating a new, common law exception to privilege," said Smoler, who noted that the decision is narrowly drawn to extend only to a particular type of case. "The key legal issue is, When does the public policy right of an accused sex abuser trump privilege? This ruling recognizes how horrible those kinds of accusations are. And it says [to therapists]: You can't inflict that kind of harm and get away with it."