SPOKANE, Wash. (Legal Newsline) – Discussions at marital counseling won’t yet come into a medical malpractice lawsuit in Washington, where health care providers sought to defeat the privilege that protects them.
On July 2, the state Supreme Court said that even though emotional distress is at issue in their lawsuit, the Magney family isn’t at this point required to air the grievances addressed at marital counseling.
“The Magneys did not automatically waive privilege because filing a lawsuit is not one of the enumerated exceptions under the ‘marital counseling’ privilege statute,” wrote retired Justice Charles Wiggins.
“However, this court has a limited record of the parties’ discovery and no way of knowing the contents of the marital privilege records. Therefore, we cannot determine on the record whether the privilege has been impliedly waived by the actions of the Magneys at this point in litigation.”
The trial court will review the records, out of open court, to decide whether the Magneys impliedly waived privilege.
In 2015, the Magneys’ son was misdiagnosed with acute myeloid leukemia and subjected him to unnecessary chemotherapy when he was an infant, a 2017 lawsuit alleged.
The Magneys made a claim for emotional distress, though the health care defendants found out they had gone through marital counseling a year before the diagnosis.
They claimed their loss of consortium claim pertained to their relationship with their son, not their relationship with each other. The defendants claimed any mental health records are relevant and privilege is waived because the Magneys made a mental anguish claim.
The trial court is instructed to determine if the particular mental anguish they allege has any connection to what was discussed pre-diagnosis in marital counseling.
Justice Sheryl Gordon McCloud dissented in part.
“(T)he majority conflates waiver with relevancy,” she wrote. “That conflation of waiver and relevancy effectively eviscerates the legislatively created privilege. Instead, the implied waiver inquiry must be kept separate from the relevancy inquiry.”