Advantage Behavioral Health Systems v. Eric Cleveland, as Administrator of the Estate of Nicholas Cleveland , 829 S.E.2d 763 ( 2019 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 17, 2019
In the Court of Appeals of Georgia
A19A0656. ADVANTAGE BEHAVIORAL HEALTH SYSTEMS
v. CLEVELAND, AS ADMINISTRATOR OF THE ESTATE OF
NICHOLAS CLEVELAND et al.
MILLER, Presiding Judge.
Upon being discharged from a mental health care facility operated by
Advantage Behavioral Health Systems (“Advantage”), Nicholas Cleveland committed
suicide. Cleveland’s parents then filed this negligence and wrongful death action
against Advantage, and Advantage filed a motion for a protective order, seeking to
have portions of its records on Cleveland declared privileged. The trial court issued
an order ruling that only some of the records were privileged and that Advantage
lacked standing to assert the mental health privilege to exclude otherwise relevant
evidence at trial. For the following reasons, we affirm the trial court’s ruling as to
which records were privileged, but we reverse its ruling that Advantage lacked
standing to assert the mental health privilege.
The record shows that on March 29, 2016, Cleveland presented at Athens
Regional Medical Center with complaints and/or a history of suicidal thoughts,
bipolar disorder, severe depression, hallucinations, and alcohol use disorder.
Cleveland was examined by Dr. Edward Green, a member of the hospital’s emergency
department, who completed a Form 1013 ordering that Cleveland be involuntarily
committed to Vantage Point, a mental health care facility operated by Advantage.1
Cleveland received treatment at Vantage Point for two days until his discharge on
April 1, 2016, and he committed suicide a few hours later.
In May 2016, Cleveland’s parents requested a copy of his medical records from
Advantage, and Advantage produced all the records without redaction. In October
2016, Cleveland’s parents’ attorneys requested a certified copy of the medical records
from Advantage, and Advantage again produced the records without redaction. In
1
Advantage is a state community service board which operates programs and
provides treatment and support services regarding mental health, developmental
disabilities, and addictive diseases. See OCGA § 37-2-6 (a). Vantage Point offers
short-term residential services for individuals with psychiatric and substance abuse
disorders, and its staff includes a psychiatrist, a nurse practitioner, nurses, clinicians,
technicians, and operational support staff.
2
June 2017, Cleveland’s parents filed the instant action against Advantage,2 raising
claims of wrongful death and professional negligence based on the allegation that
Advantage failed to properly evaluate and treat Cleveland’s suicide risk and
improperly discharged him given that risk.
Advantage filed a motion for a protective order, seeking rulings that certain
disputed portions of the medical records be declared privileged3 under the mental
health privilege provided for in OCGA § 24-5-501 (a) and that further disclosure of
any privileged records be precluded. Advantage argued that, in addition to
communications between Cleveland and mental health care providers and
communications between the providers themselves, records of assessment, diagnosis,
and treatment were privileged and therefore inadmissible as evidence at trial.
The plaintiffs opposed the motion, arguing that the disputed portions of the
records, which they described as “diagnoses, medications, prescriptions, goals,
plan[s] of treatment, orders, observations, assessments and non-mental health
2
The plaintiffs also named as a defendant the Georgia Department of
Behavioral Health and Developmental Disabilities, but they subsequently dismissed
this defendant without prejudice.
3
The parties agreed that certain portions of the records were privileged and
highlighted these portions in orange. Advantage highlighted the disputed portions of
the records and submitted all of the records to the trial court for an in camera review.
3
records,” were not privileged. The plaintiffs asserted that under OCGA § 24-5-501
(a) only portions of the records reflecting communications between Cleveland and
certain mental health care providers were privileged. The plaintiffs also argued that
it appeared some of the records were not created by providers subject to the mental
health privilege.
The trial court issued an order ruling that (1) only certain portions of the
disputed records contained privileged information, and (2) Advantage did not have
standing to assert the mental health privilege on behalf of Cleveland to exclude
otherwise relevant evidence at trial.4 Regarding which portions of the records were
privileged, the trial court found that the diagnoses, medications, and prescriptions
were not privileged. Noting that OCGA § 24-5-501 (a) applies the mental health
privilege to communications only, the trial court declined to construe the privilege
against disclosure of confidential communications so broadly as to encompass
diagnoses and medications prescribed, because doing so would render meaningless
OCGA § 37-3-166 (a) (8.1), which provides that the non-privileged portions of
4
The trial court also ruled that the prior release of the records by Advantage
did not constitute a waiver of Cleveland’s mental health privilege. This ruling is not
contested on appeal. The trial court did not address whether the records were created
by professionals subject to the mental health privilege.
4
mental health records may be released to the legal representative of a deceased
person’s estate.
Regarding what it characterized as goals, observation orders/levels, objectives,
and plans of treatment, the trial court found that many of these records were not
privileged because they could not be characterized as confidential communications.
Instead, the trial court found that they were expectations of staff and were not
particularized to Cleveland as a result of any communications from him. Among these
records were those indicating (1) that the facility had goals that Cleveland not be a
danger to himself, take medications as prescribed, and decrease alcohol withdrawal
symptoms; (2) that he would be encouraged to attend group therapy; and (3) how
often staff members were checking on him. The trial court found that records
indicating Cleveland’s stress level and his own comments on his stress level were
privileged, reasoning that the records came from patient communication.
Regarding what it characterized as observations, the trial court stated that it
determined whether the observations were the result of communication with
Cleveland. The trial court found that several observations were privileged because
they came from communications by Cleveland, arose immediately out of his
communications, or were communicative in nature. Such records included indications
5
of whether Cleveland had suicidal thoughts, how he slept, how much alcohol he
drank, and his living and employment situation. The trial court found that other
observations were not privileged because they were treatment-directed, were by the
treatment providers, or reflected goals of treatment and conclusions of the providers.
Such records indicated that Cleveland met with a social worker, had an appropriate
appearance, was interacting well with others, watched television, was cooperative,
and was in a detoxification program. The trial court found that a record summarizing
a discussion between Cleveland and a treatment provider was privileged, and records
indicating Cleveland’s description of his mood and whether he accepted or declined
rehab were also privileged, but a record indicating he attended group therapy was not
privileged.
The trial court found without discussion or explanation that the Form 1013
from Dr. Green was not privileged. The trial court found that a record showing that
Cleveland had a “service class” of “psychiatric treatment” was not privileged because
it simply concerned the fact of treatment. The trial court found that certain
assessments reflected Cleveland’s answers to questions, and certain treatment goals
were clearly developed as a result of communications with him, rendering both
privileged. The trial court found that certain plans of care, including records
6
indicating the future discussions a treatment provider planned to have with Cleveland
and records consisting of general treatment goals and diagnostic information, were
not privileged.
Next, however, the trial court ruled that Advantage did not have standing to
assert the mental health privilege on behalf of Cleveland at trial, reasoning that
Advantage was a stranger to the privileged communications between Cleveland and
his individual mental health care professionals. The trial court stated that it “ma[de]
no determination as to the testimony of any individual mental health care
professional.”5 We granted Advantage’s application for interlocutory appeal, and this
appeal followed.
1. First, we address the plaintiffs’ argument that Advantage’s appeal should be
dismissed due to its failure to file an enumeration of errors. We conclude that
although Advantage has not filed or included in its appellant’s brief an enumeration
of errors, it is apparent from the notice of appeal, the record, and the brief what errors
Advantage asserts, and we decline to dismiss this appeal.
OCGA § 5-6-48 (f) provides:
5
Because Advantage is a state entity, the plaintiffs could not name the
individual mental health care professionals as defendants in this action. See OCGA
§ 50-21-25.
7
Where it is apparent from the notice of appeal, the record, the
enumeration of errors, or any combination of the foregoing, what
judgment or judgments were appealed from or what errors are sought to
be asserted upon appeal, the appeal shall be considered in accordance
therewith notwithstanding that the notice of appeal fails to specify
definitely the judgment appealed from or that the enumeration of errors
fails to enumerate clearly the errors sought to be reviewed. . . .
“The legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts
a statutory duty to discern what errors an appellant is attempting to articulate.”
(Punctuation omitted.) Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999). Also,
we are mindful of our Supreme Court’s cautioning that the APA is to be liberally
construed so as to bring about a decision on the merits of every case appealed and to
avoid refusal to consider any points raised therein. See id.; OCGA § 5-6-30. See also
Holy Fellowship Church of God in Christ v. First Community Bank of Henry County,
242 Ga. App. 400, 402 (530 SE2d 24) (2000) (“As a general rule, this state’s
appellate courts should reach the merits of appeals whenever possible. The policy is
to avoid the dismissal of an appeal and to reach the merits of a case whenever it is
reasonable to do so.”) (citations omitted). Moreover, OCGA § 5-6-48 (b) provides:
No appeal shall be dismissed or its validity affected for any cause nor
shall consideration of any enumerated error be refused, except:
8
(1) For failure to file notice of appeal within the time required as
provided in this article or within any extension of time granted
hereunder;
(2) Where the decision or judgment is not then appealable; or
(3) Where the questions presented have become moot.
In several recent cases, this Court has considered appeals despite the
appellant’s failure to file an enumeration of errors where we could discern the errors
asserted on appeal. See State v. Martinez-Palomino, 329 Ga. App. 304, 305 n. 2 (764
SE2d 886) (2014); State v. Crapp, 317 Ga. App. 744, 744-745 (1) (732 SE2d 806)
(2012); Jackson v. State, 314 Ga. App. 272, 272 n. 1 (724 SE2d 9) (2012); State v.
Madison, 311 Ga. App. 31, 32 (1) (714 SE2d 714) (2011), overruled on other grounds
by State v. Cohen, 302 Ga. 616 (807 SE2d 861) (2017); Blockum v. Fieldale Farms
Corp., 271 Ga. App. 591, 592 (1) (610 SE2d 82) (2005); Leslie v. Williams, 235 Ga.
App. 657, 658-659 (1) (510 SE2d 130) (1998), disapproved of on other grounds by
Herr v. Withers, 237 Ga. App. 420 (515 SE2d 174) (1999). This Court’s conclusion
in Martinez-Palomino, supra, 329 Ga. App. at 305 n. 2, is illustrative of these cases:
“Notwithstanding the State’s failure to include an enumeration of errors in its brief,
this Court is required to consider the appeal because we can discern from the State’s
9
brief and the record the errors that the State is asserting on appeal. Consequently, we
deny [the appellee’s] motion to dismiss the appeal.” (citations omitted). Compare
Baker v. State, 328 Ga. App. 53, 53-54 (761 SE2d 477) (2014) (dismissing appeal for
failure to include enumeration of errors where “[n]othing in [the appellant’s] brief can
be construed as an enumeration of error as to a specific ruling made by the trial
court.”).
However, in Complete Wiring Sols., LLC v. Astra Group, Inc., 335 Ga. App.
723, 726 (781 SE2d 597) (2016), this Court dismissed an appeal that contained no
enumeration of errors, declaring that “in the absence of an enumeration of errors filed
in compliance with OCGA § 5-6-40, this Court will not comb through the appellate
brief to attempt to discern what errors the appellant seeks to assert on appeal.”
(citations omitted). There, the appellants’ brief contained (1) a section titled
“Standard of Review” which stated the standard of appellate review and included a
general statement that the judgment was not supported by the evidence and was based
on erroneous findings of fact, and (2) a section titled “Statement of Facts” which
mixed together asserted facts, claims of error, supporting arguments, and citations to
authority. Id. at 724. This Court remarked that nothing in the brief was “sufficient to
10
constitute an ‘enumeration of errors’ required to be filed pursuant to OCGA § 5-6-
40.” Id.
In other cases, this Court and the Supreme Court of Georgia have dismissed
appeals based on the absence of an enumeration of errors, but those cases (1) did not
address whether the errors asserted on appeal could be discerned from other
documents, and/or (2) were decided at a time when appellate court rules required the
enumeration to be filed separately from the appellant’s brief. See Lowery v. Smith,
225 Ga. 814 (171 SE2d 500) (1969); Riley v. Ga. Dept. of Revenue, 295 Ga. App. 656(673 SE2d 49) (2009); Strom v. London, 257 Ga. App. 889 (572 SE2d 409) (2002);
Miles v. Emmons, 234 Ga. App. 487 (507 SE2d 762) (1998).
In a case decided this year, State v. Freeman, Ga. App. (825 SE2d 538) (2019),
the appellant failed to file or include in its brief an enumeration of errors. While
recognizing the “apparent tension” between the cases in which this Court has
considered an appeal despite such a failure and the holding in Complete Wiring Sols.,
LLC, this Court concluded it could consider that appeal because “in our examination
of the State’s notice of appeal and the record, we can clearly ascertain the single
allegedly erroneous ruling asserted.” Id.11
In light of the statutory mandates favoring consideration of this appeal, our
duty to construe the APA forgivingly, and the apparent tension in the case law, we
are not persuaded that the failure to title a section of an appellant’s brief as an
“Enumeration of Errors” necessarily requires dismissal of the appeal. Here, in the
“Argument” section of its brief, Advantage argues that (1) “[t]he trial court erred in
concluding that the mental health privilege does not apply to the diagnoses,
medications, prescriptions, goals, observations, and treatment plans in Cleveland’s
mental health records,” and (2) “[t]he trial court incorrectly held that Advantage lacks
standing to assert the mental health privilege.” Thus, we can clearly ascertain the two
rulings Advantage asserts were erroneous, and we decline to dismiss this appeal. See
Felix, supra, 271 Ga. at 539 (“An error of law has as its basis a specific ruling made
by the trial court.”). However, we emphasize for Advantage and other appellants the
importance of following appellate practice rules, including the filing of an
enumeration of errors. Such rules foster judicial efficiency and aid appellate courts
in reaching the right result, and failure to follow them may result in dismissal of an
appeal.
2. Next, we must resolve the parties’ dispute over the proper standard of review
to apply to the trial court’s order. Advantage asserts that the order is subject to de
12
novo review, while the plaintiffs assert that we should review it for an abuse of
discretion. As shown in Division 3 below, whether Advantage has standing to assert
the mental health privilege in the circumstances presented does not involve any
factual determinations and only presents a question of law. As “the standard of review
for a question of law on appeal is de novo,” Ga. Transmission Corp. v. Worley, 312
Ga. App. 855, 856 (720 SE2d 305) (2011) (citation and punctuation omitted), we will
review the trial court’s standing ruling de novo.
We will, however, review the trial court’s ultimate rulings regarding whether
certain records were privileged for an abuse of discretion, while reviewing any factual
determinations underlying those rulings for clear error. In Cooksey v. Landry, 295 Ga.
430 (761 SE2d 61) (2014), upon a mental health patient’s death, his parents sought
an injunction directing his psychiatrist to turn over all of the patient’s records.
Without reviewing the records and without making any distinction between privileged
and non-privileged information, the trial court concluded that equity supported the
parents’ position and issued the injunction. Id. at 430-431. On appeal, the Supreme
Court of Georgia stated that “[t]he issue to be decided by the trial court in this appeal
was a legal one, whether the psychiatric records sought by appellees constitute
privileged matters protected from disclosure under Georgia law. Accordingly, we
13
review the trial court’s legal determinations de novo.” (Citation omitted.) Id. at 431(1).
This Court and the Supreme Court of Georgia generally review the grant or
denial of a motion for protective order using the abuse of discretion standard of
review. Alexander Properties Group Inc. v. Doe, 280 Ga. 306, 307 (1) (626 SE2d
497) (2006); Mincey v. Ga. Dept. of Comm. Affairs, 308 Ga. App. 740, 744 (1) (708
SE2d 644) (2011). The appellate courts also generally review for an abuse of
discretion a “decision as to discovery matters, including the application of a
privilege.” Gwinnett Hosp. Sys., Inc. v. Hoover, 337 Ga. App. 87, 88 (785 SE2d 918)
(2016); Brown v. Howard, 334 Ga. App. 182, 183 (778 SE2d 810) (2015). See Wiles
v. Wiles, 264 Ga. 594, 598 (2) (448 SE2d 681) (1994) (applying abuse of discretion
standard to review trial court’s ruling that patient was entitled to the benefit of the
mental health privilege).
Here, in contrast to Cooksey, the trial court carefully reviewed the disputed
records and based most of its privilege rulings on specific factual determinations
regarding whether the records arose from patient communications. Accordingly, we
determine that the trial court’s ultimate privilege rulings should be reviewed for an
abuse of discretion, and we will accept the trial court’s specific factual findings
14
underlying those rulings unless they are clearly erroneous. “[I]n various contexts, we
accept factual findings unless they are clearly erroneous and review a trial court’s
ultimate decision on the particular issue for abuse of discretion.” (Citation omitted.)
Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012). See Graves v. State, 298 Ga.
551, 554 (2) (783 SE2d 891) (2016) (in reviewing the trial court’s admission of
similar transaction evidence, this Court accepts the trial court’s factual findings
unless clearly erroneous and reviews for abuse of discretion its ultimate decision to
admit the evidence); Brown, supra, 334 Ga. App. at 183 (“Further, we also may
review the documents at issue to determine whether the trial court correctly applied
the [mental health] privilege.”) (citation omitted).
3. Turning to the merits, we agree with Advantage that the trial court erred in
ruling it lacks standing to assert the mental health privilege.
“Georgia law provides several privileges related to mental health, which,
collectively, are referred to as the mental health privilege.” Brown, supra, 334 Ga.
App. at 185 (1); see State v. Herendeen, 279 Ga. 323, 325 (613 SE2d 647) (2005).
Specifically, OCGA § 24-5-501 (a) provides:
15
There are certain admissions and communications excluded from
evidence on grounds of public policy, including, but not limited to, the
following:
...
(5) Communications between psychiatrist and patient;
(6) Communications between licensed psychologist and patient as
provided in Code Section 43-39-16;
(7) Communications between a licensed clinical social worker, clinical
nurse specialist in psychiatric/mental health, licensed marriage and
family therapist, or licensed professional counselor and patient; [and]
(8) Communications between or among any psychiatrist, psychologist,
licensed clinical social worker, clinical nurse specialist in
psychiatric/mental health, licensed marriage and family therapist, and
licensed professional counselor who are rendering psychotherapy or
have rendered psychotherapy to a patient, regarding that patient’s
communications which are otherwise privileged by paragraph (5), (6),
or (7) of this subsection . . . .
OCGA § 43-39-16 provides that “[t]he confidential relations and communications
between a licensed psychologist and client are placed upon the same basis as those
16
provided by law between attorney and client; and nothing in this chapter shall be
construed to require any such privileged communication to be disclosed.”
“The primary purpose of the [mental health] privilege is to encourage the
patient to talk freely without fear of disclosure and embarrassment, thus enabling the
psychiatrist to render effective treatment of the patient’s emotional or mental
disorders.” (Citation and punctuation omitted.) Cooksey, supra, 295 Ga. at 432 (2).
The privilege “remains inviolate even though the patient’s care and treatment or the
nature or extent of the patient’s injuries are put in issue in a civil proceeding.” Id. at
432-433 (2). See also Mincey, supra, 308 Ga. App. at 745 (1); OCGA § 24-12-1 (a).
“Moreover, and of primary importance in this case, is the fact that unlike other
recognized privileges, the [mental health] privilege survives the death of the patient.”
(Citation and footnote omitted.) Cooksey, supra, 295 Ga. at 433 (2).
Here, we conclude that the trial court erred in ruling that Advantage does not
have standing to seek to exclude otherwise relevant evidence by asserting the mental
health privilege on behalf of Cleveland at trial. In the absence of a waiver by the
patient,6 privileged material is neither discoverable nor admissible at trial, and
nothing precludes Advantage from asserting the privilege.
6
There is no contention that Cleveland waived the privilege.
17
In Cooksey, supra, 295 Ga. at 434-435 (2), the Supreme Court of Georgia held
that the trial court erred in directing the psychiatrist to turn over all of the patient’s
records. The Supreme Court reasoned that the privilege survives the death of the
patient, noting that “it is the promise of confidentiality that encourages patients to
openly discuss their emotional and mental health issues. If psychiatrist-patient
communications were protected only until the patient’s death, patients might not feel
as free to make the disclosures necessary for effective treatment, thereby impeding
the primary goal of the privilege.” (Citation omitted.) Id. at 433 n. 6 (2). Significantly,
the Supreme Court explained that “the privilege is held only by the patient and waiver
of the privilege must be expressly made by the patient, or, in the absence of an
express waiver by the patient, one seeking the disclosure of privileged mental-health
records must establish a waiver by the patient’s decisive unequivocal conduct
reasonably inferring the intent to waive.” (Citation, punctuation, and footnote
omitted; emphasis supplied.) Id. at 433 (2). See also Willett v. State, 223 Ga. App.
866, 868 (1) (479 SE2d 132) (1996) (“The right to assert the privilege belongs to the
patient.”) (citation omitted).
The Supreme Court further explained in Cooksey, supra, 295 Ga. at 433 (2),
that
18
[c]onsistent with the protections afforded psychiatrist-patient
communications even after a patient’s death, our legislature has
determined that a deceased patient’s representative cannot waive the
psychiatrist-patient privilege. See OCGA § 31-33-4 (providing that
statutes authorizing the release of health records to a deceased patient’s
representative “shall not apply to psychiatric, psychological, or other
mental health records of a patient”); OCGA § 37-3-166 (a) (8.1)
(authorizing mental health facilities to release a deceased patient’s
mental health records “to the legal representative of [the] deceased
patient’s estate, except for matters privileged under the laws of this
state.”).
The Supreme Court framed the privilege as a nearly absolute one, emphasizing that
“the patient is the holder of the psychiatrist-patient privilege and absent waiver by the
patient, privileged communications may not be disclosed.” (Emphasis in original.) Id.
at 434 n. 7 (2). See also id. at 434 (2) (“[U]nder Georgia law confidential
communications between a psychiatrist and patient may not be disclosed absent
waiver by the patient . . . .”). Therefore, Cooksey certainly suggests that if a patient
does not waive the mental health privilege, upon the patient’s death his or her
privileged mental health records are absolutely privileged and are therefore neither
19
discoverable nor admissible at trial, regardless of who raises the issue of the
privilege.7
Other cases support the concept that the mental health privilege applies in the
absence of a waiver by the patient and regardless of who raises the issue, whether it
be an individual mental health professional, a mental health care facility, or another
entity. In Annandale at Suwanee, Inc. v. Weatherly, 194 Ga. App. 803 (392 SE2d 27)
(1990), the plaintiff filed suit against a mental health facility on behalf of the estate
of a patient who died in a fire set by another patient. Citing the mental health
privilege, the facility objected to the plaintiff’s request that the facility produce all
reports referring to the other patient, but the trial court ordered the facility to produce
7
Prior to Cooksey, in Sims v. State, 251 Ga. 877, 880 (5) (311 SE2d 161)
(1984), the defendant in a murder case sought to have a psychiatrist testify to
statements made by the victim during joint counseling sessions with the defendant
and the victim. The Supreme Court of Georgia held that the trial court did not err in
refusing to allow the testimony, as the victim’s communications to the psychiatrist
were entitled to protection and the privilege survived the victim’s death. Id. at 881(5). The Supreme Court noted that the issue of the State’s standing to assert the
privilege was not raised, but there were competing lines of authority on the
issue: some holding that only the personal representative of the communicant or the
psychiatrist may assert the privilege after the communicant’s death, and others
holding that the trial court has discretion to invoke the privilege on its own motion
in the communicant’s absence. Id. at 881 n. 7 (5). Cooksey appears to have largely
resolved this issue, such that in the absence of a waiver by the patient, material
covered by the mental health privilege remains nearly absolutely privileged after a
patient’s death.
20
the records. Id. This Court held that to the extent the records involved
communications between the patient and a psychiatrist or psychologist, the records
were privileged and “not to be produced.” Id. at 804. See also Herendeen, supra, 279
Ga. at 327 (in the absence of a waiver of the mental health privilege by the patients,
any information in the possession of a mental health facility which had its origins in
communications from the patients to covered mental health providers was privileged
and not subject to disclosure pursuant to a subpoena).
In Freeman v. State, 196 Ga. App. 343, 343-344 (1) (396 SE2d 69) (1990), the
defendant called a psychiatrist to testify regarding his conclusion that the victim, his
patient, had psychiatric disorders. The State objected on the basis of the mental health
privilege, and it was established that the victim had not waived the privilege. This
Court concluded: “This privilege is absolute. The requisite confidential relationship
existed. Without a waiver, there was no basis for the admission of testimony about
communications between psychiatrist and patient.” (Citations omitted.) Id. at 343-344
(1). See also Trammel v. Bradberry, 256 Ga. App. 412, 423 (6) (568 SE2d 715)
(2002) (physical precedent only) (“As to civil commitment or treatment by
psychiatrist, psychologist, or counselor, the absolute privilege of [former OCGA
§ 24-9-21, current OCGA § 24-5-501] applies except when waived by the patient
21
alone.”) (citation omitted); Scroggins v. State, 237 Ga. App. 122, 124 (4) (514 SE2d
252) (1999) (“The [mental health] privilege is absolute, and unless it is waived, the
information sought is not discoverable.”) (citation omitted); Milich, Ga. Rules of
Evidence 2018-2019, § 23:4 (“The client is the holder of the privilege and thus only
the client may assert or waive it.”).
By way of contrast, in Johnson v. State, 254 Ga. 591, 595 (2) (331 SE2d 578)
(1985), the Supreme Court of Georgia held that the defendant lacked standing to
object to the testimony of his co-defendant’s cellmate regarding psychiatric reports
on the cellmate’s mental condition. The Supreme Court explained that the mental
health privilege belonged to the cellmate, who gave the testimony without claiming
protection of the privilege. Id. at 595 n. 2 (2). Therefore, the cellmate in Johnson may
have implicitly waived his privilege by testifying, while in this case Cleveland is
deceased and there is no contention he waived his privilege.
Moreover, a rule that a facility in possession of privileged information may not
assert the mental health privilege — whether to prevent disclosure of such
information during discovery or to prevent admission of such information at trial —
would contravene the privilege’s purpose of encouraging free communications
between patients and mental health providers. See Herendeen, supra, 279 Ga. at 325
22
(“As far as the individual patient’s private interest is concerned, confidentiality is a
sine qua non for successful psychotherapeutic treatment since a psychotherapist’s
ability to help a patient is completely dependent upon the patient’s willingness and
ability to talk freely, and assurances of confidentiality and privilege foster the
psychotherapist’s ability to function.”) (citation omitted); Mincey, supra, 308 Ga.
App. at 745 (1) (“[I]n order to encourage a patient to speak freely to his or her mental-
health professional, we declare such communications ‘absolutely privileged,’ and
protect them from discovery in the absence of an affirmative waiver by the patient.”)
(citations omitted).
We recognize that the mental health privilege and the attorney-client privilege
are largely coextensive, see OCGA § 43-39-16, and that the rule providing that
communications between attorney and client are privileged cannot be invoked for the
benefit of persons who are strangers to the attorney-client relationship. See White v.
Regions Bank, 275 Ga. 38, 41 (2) (c) (561 SE2d 806) (2002); Schaffer v. Fox, 303 Ga.
App. 584, 587 (2) (693 SE2d 852) (2010). However, this does not alter our
conclusion here for two reasons. First, we are bound by Cooksey and other prior cases
describing the mental health privilege as nearly absolute and applicable in the
absence of waiver by the patient. Second, we reject the concept that a mental health
23
facility, which employs individual mental health providers and is the custodian of the
patient’s records, is a “stranger” to the provider-patient relationship. Indeed, a
hospital or mental health facility can be held liable for the improper disclosure of
privileged mental health records. See Kennestone Hosp. v. Hopson, 273 Ga. 145 (538
SE2d 742) (2000); Sletto v. Hosp. Auth., 239 Ga. App. 203, 206 (1) (521 SE2d 199)
(1999).
We also acknowledge that “it is no small matter for a court, given its focus on
the pursuit of truth and justice, to hold that potentially relevant evidence is shielded
from [admission at trial],” Cooksey, supra, 295 Ga. at 435 (3), especially in light of
the fact that Advantage has previously disclosed the records. “Our legislature,
however, has determined that the public policies supporting the creation of a mental
health privilege necessitated enactment of a nearly absolute privilege, one without
exception if the patient is deceased or the nature of the patient’s mental condition is
put at issue.” Id. at 435-436 (3). Accordingly, we conclude that the trial court erred
in ruling that Advantage does not have standing to exclude otherwise relevant
evidence by asserting the mental health privilege on behalf of Cleveland at trial.
4. In arguing that “[t]he trial court erred in concluding that the mental health
privilege does not apply to the diagnoses, medications, prescriptions, goals,
24
observations, and treatment plans in Cleveland’s mental health records,” Advantage
challenges the trial court’s privilege rulings in toto without analyzing or challenging
any specific rulings. Advantage broadly asserts that the mental health privilege
applies not just to actual communications between patients and mental health
professionals, but also to information with origins in such communications. It argues
that diagnoses, medications, prescriptions, goals, observations, and treatment plans
necessarily originate from communications, as the only way mental health
professionals can diagnose patients, determine what medications to prescribe, collect
observations, or devise treatment plans is by communicating with them, and the
mental health privilege must be applied here in order to advance the privilege’s
purpose.
Because Advantage only provides argument challenging the trial court’s
privilege rulings as a whole and at least some of these rulings were not erroneous, this
enumeration of error fails. The trial court did not rule that the “diagnoses,
medications, prescriptions, goals, observations, and treatment plans” in the records
were categorically not privileged. Instead, at least as to the goals, observations, and
treatment plans, the trial court analyzed the records and ruled that some records were
25
privileged and some were not, depending on whether they arose from patient
communications.
It is well-settled that the mental health privilege applies to “communications”
and “admissions” between patients and covered mental health providers, as well as
communications between such providers regarding patient communications. See
OCGA § 24-5-501 (a); Cooksey, supra, 295 Ga. at 433 n. 5 (2); Dynin v. Hall, 207
Ga. App. 337, 338 (1) (428 SE2d 89) (1993); Mrozinski v. Pogue, 205 Ga. App. 731,
734 (2) (423 SE2d 405) (1992). The privilege also applies to “any information that
the [mental health] professional holds which has its origins in” communications
between the patient and the professional. See Mincey, supra, 308 Ga. App. at 746 (1).
See also Cooksey, supra, 295 Ga. at 432 n. 4 (2) (“The protections afforded these
communications extend to communications between or among a psychiatrist and
other mental health professionals listed in OCGA § 24-5-501 (a) (8) and include a
psychiatrist’s conclusions that originated in communications between the patient and
the psychiatrist.”) (citation omitted); Herendeen, supra, 279 Ga. at 327 (“Any
information in the possession of [the professionals or facility] which had its origins
in communications from the patients to the medical health providers is privileged.”)
(citation omitted); Mrozinski, supra, 205 Ga. App. at 734 (2) (“Information which
26
originated as communications from the patient may be privileged.”) (citation and
punctuation omitted; emphasis in original). The privilege does not apply to the fact
of treatment or the dates on which treatment was rendered. Cooksey, supra, 295 Ga.
at 433 n. 5 (2); Johnson, supra, 254 Ga. at 597 (7); Mincey, supra, 308 Ga. App. at
746 (1).
Here, the trial court did not abuse its discretion in ruling that at least some of
the disputed records were not privileged, based on its factual findings that these
records did not have their origins in patient-mental health professional
communications. One disputed record indicates that Cleveland was receiving
psychiatric treatment, and the mental health privilege does not apply to the fact of
treatment. Other disputed records simply show that Cleveland participated in certain
activities, such as meeting with a social worker, attending group therapy, and
watching television, or show that his appearance was appropriate. The trial court did
not clearly err in finding that these records did not have their origins in patient
communications.
27
While it is arguable that some portions of the records which the trial court
deemed non-privileged actually had their origins in patient communications,8 we do
not resolve that issue in this appeal because it is not presented to us. Advantage
broadly challenges the trial court’s privilege rulings as a whole, and at least some of
these rulings were not erroneous. Advantage, as the appellant, bears the burden to
show error affirmatively by argument and by citation to the record. See Court of
Appeals Rule 25 (c) (2). As Advantage’s challenge to the entirety of the trial court’s
privilege rulings fails, we will not manufacture or analyze more specific enumerations
of error or arguments not asserted by Advantage.9 See Hess Oil & Chemical Corp. v.
8
For instance, while the trial court ruled that the diagnoses were not privileged,
in Freeman, supra, 196 Ga. App. at 343-344 (1), this Court determined that the
mental health privilege applied to a psychiatrist’s testimony that as a result of his
evaluations of the victim, his former patient, he found the victim to be suffering from
major psychiatric disorders. We note that where actual communications are not at
issue and a trial court must determine whether disputed material had its origins in
patient communications, application of the privilege can be a fact-intensive inquiry,
although such inquiry should be guided by precedent such as Freeman.
9
We also note that, as the plaintiffs point out, it is not apparent from the record
on appeal whether some of the disputed records involve communications between
Cleveland and covered mental health providers or agents thereof under OCGA § 24-
5-501 (a). “In order to invoke the statutory mental health privilege in Georgia, the
requisite relationship of mental health provider and patient must have existed.”
(Punctuation omitted.) Herendeen, supra, 279 Ga. at 326. Under the clear terms of
OCGA § 24-5-501 (a), the privilege only applies to communications involving
psychiatrists, psychologists, licensed clinical social workers, clinical nurse specialists
28
Nash, 226 Ga. 706, 708 (177 SE2d 70) (1970) (“The duty of the appellate court is to
correct errors alleged to have been made in the trial court and not to manufacture
them.”).
In conclusion, we reverse the trial court’s ruling that Advantage lacks standing
to exclude privileged material at trial by asserting the mental health privilege.
However, we affirm the trial court’s rulings regarding whether disputed portions of
Advantage’s records were privileged.
Judgment affirmed in part and reversed in part. Rickman and Reese, JJ.,
concur.
in psychiatric/mental health, licensed marriage and family therapists, and licensed
professional counselors. See OCGA § 24-5-501 (a) (5) - (8). The privilege also
applies to agents of covered mental health providers. See Hoover, supra, 337 Ga.
App. at 88-89 (1); Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995).
See also Myers v. State, 251 Ga. 883, 884 (2) (310 SE2d 504) (1984) (“Where the
nurse is an agent of the hospital rather than the communicant’s doctor, however, the
doctor’s privilege will not protect communications made to the nurse.”) (citation
omitted).
29