McGinnis v. McGinnis , 66 N.C. App. 676 ( 1984 )

311 S.E.2d 669 (1984)

Jake Allen McGINNIS, Sr.
v.
Betty Jean McGINNIS.

No. 8327DC301.

Court of Appeals of North Carolina.

February 21, 1984.

No brief filed for plaintiff-appellee.

Childers, Fowler & Childers by Max L. Childers and David C. Childers, Mount Holly, for defendant-appellant.

HILL, Judge.

Defendant contends the trial court erred in allowing in its entirety the testimony of defendant's psychiatrist concerning treatment defendant received from him in his capacity as a psychiatrist. Objection was made to the psychiatrist's testimony by defendant on the grounds that any communication regarding the psychiatrist was privileged information.

North Carolina has created by statute a privilege for communications between physician and patient. See G.S. 8-53 (for doctors); see also G.S. 8-53.3 (for psychologists). "It is the purpose of such statutes to induce the patient to make full disclosure that proper treatment may be given, to prevent public disclosure of socially stigmatized diseases, and in some instances to protect patients from self-incrimination." Sims v. Insurance Co., 257 N.C. 32, 36, 125 S.E.2d 326, 329 (1962). The physician-patient privilege "extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe." Smith v. Lumber Co., 147 N.C. 62, 64, 60 S.E. 717, 718 (1908). The privilege is for the benefit of the patient alone; the patient may waive the privilege. Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137 (1960). The privilege is a qualified, rather than an absolute, privilege in that the judge has discretion to "compel such disclosure, if in his opinion the same is necessary to a proper administration of justice." G.S. 8-53.

Applying these basic tenets to the case under review, we are of the opinion that the psychiatrist cannot divulge defendant's communications unless defendant waived the physician-patient privilege, or the interests of justice required that the privilege be withheld. Neither exception existed in the case under review.

1. Waiver. The physician-patient privilege was not waived. Defendant did not offer the testimony of her treating psychiatrist which would open the door and waive the privilege. Rather, the psychiatrist was presented as a witness by the plaintiff, and when such an offer was made, defendant by her objections refused to waive her legal right not to have the psychiatrist disclose the nature of her visits.

2. The interests of justice. The trial judge "may, in his discretion, compel disclosure of such communications if, in his opinion, it is necessary to a proper administration of justice and he so finds and enters such finding on the record." Capps v. Lynch, supra at 22, 116 S.E.2d at 141. In the case under review, the trial judge did not find nor did he enter a finding on the record that disclosure of defendant's communications was necessary to the administration of justice. Instead, the psychiatrist's testimony concerning defendant's mental condition was admitted in its entirety over objection by defendant. The beneficial effects that may emerge from a therapeutic relationship cannot be fully achieved unless there is a trusting relationship between a psychologist and patient which is founded on a sense of complete confidentiality. Only on that basis are most people willing to open up their innermost personalities and disclose the most private and sometimes painful aspects of their inner selves. Absent a finding that the interests of justice require the privilege be withheld, we hold that the breach of defendant's confidential therapeutic relationship in this jury trial constituted prejudicial error necessitating a new trial.

Finally, because of our disposition contained herein, defendant's motion to amend the record on appeal becomes moot.

New Trial.

HEDRICK and EAGLES, JJ., concur.