Levy v. Edelhofer
(no published decision)
Brief Filed: 11/00 and 12/00
Court: State of California Court of Appeal, Fourth District, Division Two
Year of Decision: 2001
Read the full-text amicus brief (PDF, 47KB)
(1) Whether the client-therapist privilege applies to the communications of therapist to the client, (2) whether a court should evaluate communications in therapy to decide whether they are "therapeutic" before deciding whether they are privileged, and (3) whether psychotherapists — in addition to the duty of care they owe their patients with respect to what they say or do during therapy sessions — also owe potentially conflicting duties of care to third parties for the same actions.
Dr. Levy had a patient whom he was treating for dysthymia in a borderline personality disorder with paranoid and dissociative features, feelings of rage focused toward men, merging memories of sexual molestation, misinterpretation of friendliness from men, fear of touch, paranoid ideation and distortion of reality. After some time, the patient ceased treatment with Dr. Levy and entered treatment with Dr. Edelhofer. While in treatment with Dr. Edelhofer, the patient recovered memories of being sexually molested by Dr. Levy. Dr. Edelhofer gave the patient an informational pamphlet entitled "Therapy Never Includes Sex" which advised patients of their rights to issue complaints with the state board and to sue them in the event of sexual improprieties. The patient filed a complaint with the board and filed a civil suit against Dr. Levy in Superior Court. The board took no action on the complaint, and Dr. Levy settled his lawsuit with the patient for $56,000 on the ostensible basis of purchasing her therapy tapes to use against Dr. Edelhofer. Dr. Levy then sued Dr. Edelhofer for slander, intentional infliction of emotional distress and two negligence counts. The trial court held that what was said in therapy was privileged, could not form the basis for a slander action, and dismissed the complaint. On appeal, the Court of Appeal took all of the allegations of the complaint as true, as required in reviewing a dismissal of a complaint before discovery. The Court of Appeal reversed the trial court holding that: (1) only those statements made by the patient to the therapist are privileged, while the statements of the therapist to the patient are not privileged; and (2) none of Dr. Edelhofer's statements could have been privileged because they served no "therapeutic purpose." The case was remanded to the trial court which, after discovery, denied Dr. Edelhofer's motion for summary judgment stating that the Court of Appeal's earlier ruling on privilege was dispositive but agreed that he owed no duty of care to the former therapist, under negligence principles.
Amici APA joined with the California Psychological Association to file briefs which argued that: (1) confidentiality is essential to the success of psychotherapy (patients place a critical value on confidentiality, and society has a strong interest in fostering psychotherapeutic relationships); (2) the "exceptions" indicated in the Court of Appeal's earlier opinion undermine patients' trust that therapy will remain confidential (a categorical exception for therapists' statements during a therapy session intrudes on patient privacy, a "non-therapeutic statements" exception also would fail to assure confidentiality, and case-by-case policy determinations are inconsistent with assuring confidentiality); and (3) a psychotherapist owes a duty of care only to the patient, and not to the patient's prior therapist.
The Court of Appeal denied Dr. Levy's petition asking the court to recognize that therapists have a duty of care to former therapists. With respect to Dr. Edelhofer's petition raising privilege questions, the court significantly modified the court's earlier decision on the therapist-patient privilege. The court did uphold its earlier decision that the privilege is not a bar here but did so only on the basis that this patient waived the privilege by suing Dr. Levy. Thus, by implication, the court withdrew and overturned the earlier opinion insofar as it held that the privilege would not apply in this case.