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Carter Mcclusky Zinn

Carter Zinn’s Answers

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  • What are my rights on releasing my psychiatric records, if I am not filing an emotional distress claim for a personal injury?

    If I am not filing an separate emotional distress claim, then what are my rights for releasing my confidential psychiatric records to the opposing side that is requesting 10 years of my private records. I feel if I am not filing an emotional dist...

    Carter’s Answer

    Your instincts are good. In California, if you are not claiming damages for emotional distress above and beyond what would normally be associated with the physical injury that you have suffered, then your psychological records are irrelevant to any issue in the case and are protected by a state constitutional right of privacy. there is published appellate authority on this point. If you have described your situation accurately, and in fact you are not claiming damages for emotional distress above and beyond what would normally be associated with the type of injury that you have suffered, then your attorney should meet and confer with the defendant and convince them to narrow their records subpoena to non-psychological records only. If the defendant refuses, then your attorney should file a motion to quash the subpoena, which he likely will win, in which case he can ask for sanctions from the defendant. Again, if you a representing the situation accurately, consistent with what I have explained, then your attorney is giving you bad advice. I would show him this posting and have him or her contact me if he wishes me to direct him to the authorities that support my position. Now, if you had to go to therapy, or have lost sleep or weight or allege some other form of damage that would be connected to exceptional emotional distress, then you either would have to stipulate not to bring such claims at trial, or in that case you likely would have no grounds to object to a subpoena asking for your psych records. Whatever you do, do not sign any releases for your private, protected psych records before you go over this issue thoroughly with your attorney. If he or she is not aware of the caselaw that protects your rights of privacy to your medical file if you are not claiming exception emotional distress and is encouraging you to waive these rights, I'd consider hiring another one asap. Finally, you are exactly correct. At a minimum, your attorney should request your entire file on your behalf himself so you can review what is there before the other side has an opportunity to see it in any case. By offering this suggestion, by no means to I intend to offer you legal advice beyond raising these issues to your present counsel, and I do not form an attorney client relationship with you or anyone reading this posting. The only way such relationship could be formed is by contacting me and establishing the representation through a written agreement. Best of luck to you.

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