(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued March 28, 2000 -- Decided May 10, 2000
PER CURIAM
This appeal concerns the psychologist-patient privilege.
On January 30, 1995, Diane Runyon sought and obtained a temporary restraining order (TRO) prohibiting
her husband, Guy Runyon, from returning to the marital home. Mr. Runyon sought an immediate hearing on January
31, 1995, to contest the issuance of the TRO because he believed Diane Runyon posed a danger to their children.
The record is silent as to whether Diane obtained notice of this hearing; she did not appear.
Mr. Runyon called Dr. Maureen Smith, a licensed clinical psychologist, as his first witness. Dr. Smith, who
had treated Diane over a five-year period, expressed concern for the welfare and safety of the children. She testified
that Diane did not have a history of a good relationship with the children; that Diane had been somewhat of an
absentee mother in the past two years; that Diane had been physically and verbally abusive with her oldest son; and
that Diane had an obsessive compulsive personality and was involved with a cult-like group. Dr. Smith testified that
Mr. Runyon had an excellent relationship with his children and was the primary parent.
A close friend of Diane's also testified, stating that it would be in the best interest of the children to be with
their father. Guy Runyon also testified. He confirmed the fact that Diane had used physical violence on their eldest
son.
The Family Part judge, finding Dr. Smith's testimony very persuasive, modified the TRO by granting
temporary custody of the children to Mr. Runyon.
Subsequent to the January hearing, Dr. Smith submitted to the court a written report dated June 19, 1995,
wherein she was critical of Diane Runyon, concluding that it would be a mistake to expose the children to “the
ideology of a woman with obvious thought disorders....” This report was relied on to severely restrict Diane's
access to her children. Mr. Runyon was awarded custody of the children.
On January 21, 1997, Diane Runyon filed a complaint for monetary damages against Dr. Smith and her
employer, Psychological Associates, alleging that Dr. Smith violated the psychologist-patient privilege and the rules
and regulations governing psychologists by providing fact and opinion testimony at the January hearing that was
based on information learned from counseling sessions with Diane. Further, Diane alleged that Dr. Smith submitted
a written report and certification that contained false and inaccurate information.
After filing an answer to the complaint, Dr. Smith and Psychological Associates moved for summary
judgment, arguing that the doctor's testimony at the January hearing was necessary to protect the best interests of the
children. Diane Runyon filed a cross-motion, arguing that even if Dr. Smith was entitled to breach the privilege, the
doctor did not have immunity to make false and inaccurate statements. The court granted partial summary judgment
on the issue of piercing the privilege. The court reserved decision on the immunity issue.
In August 1997, Dr. Smith and Psychological Associates filed a second motion for summary judgment,
arguing that false and inaccurate testimony by a witness in a judicial proceeding is immunized from liability. The
court agreed and dismissed Diane Runyon's remaining claims with prejudice.
Diane Runyon appealed. The Appellate Division reversed the entry of summary judgment in favor of Dr.
Smith and remanded for further proceedings. The Appellate Division reasoned that the three-pronged test must be
satisfied in order to pierce the psychologist-patient privilege: 1) there must be a legitimate need for the evidence; 2)
the evidence must be relevant and material to the issue to be decided; and 3) the information sought cannot be
secured from any less intrusive means. The Appellate panel concluded that there was no attempt by the judge to
apply this test and that the third prong of the test was not satisfied. More importantly, the panel concluded that there
was no reasonable explanation for the submission of the January 19th report. The Appellate Division found that Dr.
Smith's testimony at the January hearing and her subsequent report violated the psychologist-patient privilege.
According to the Appellate Division, if a psychologist fails to raise the privilege of the patient and makes
disclosure of confidential information without a determination by the court that disclosure is required, the
psychologist has breached the duty owed to the patient and the patient has a cause of action against the psychologist
for the unauthorized disclosure of confidential information received in the course of treatment.
The Supreme Court granted certification.
HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the opinion of the
Appellate Division. If a psychologist fails to raise the patient's privilege and discloses confidential
information without a court determination that disclosure is required, the psychologist has breached the duty
owed to the patient and the patient has a cause of action against the psychologist for the unauthorized
disclosure of information obtained in the course of treatment.
1. On this inadequate record, the Court is unable in hindsight to assess whether the testimony of Mr. Runyon and
Diane's friend provided an adequate basis for the temporary custody award. Nevertheless, Dr. Smith's testimony
and her report violated the psychologist-patient privilege. (Pp. 2- 3)
2. Nothing in this record demonstrates that the children were exposed to such a degree of danger that would trigger
the statutory duty to warn. (Pp. 3-4)
3. The fact that Diane Runyon may not prevail on her claim for damages does not affect her right to pursue that
claim. (Pp.4)
JUSTICE O'HERN, dissenting, in which the CHIEF JUSTICE joins, notes that, even assuming that
Diane Runyon could establish by competent expert testimony that Dr. Smith's conduct fell below the acceptable
standard of care, there are no recoverable damages. The trial court has already determined that not only would Dr.
Smith's evidence have been admissible in the custody action, the outcome of the custody dispute would have been
the same whether or not the evidence was introduced; thus, no viable claim for emotional distress damages has been
presented. This is a matter better suited to be addressed in the arena of professional responsibility.
JUSTICES STEIN, COLEMAN, LONG, VERNIERO, and LAVECCHIA join in this PER CURIAM
opinion. JUSTICE O'HERN filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NEW JERSEY
A-
47 September Term 1999
DIANE RUNYON,
Plaintiff-Respondent,
v.
MAUREEN B. SMITH, Ph.D and
PSYCHOLOGICAL ASSOCIATES,
Defendants-Appellants.
Argued March 28, 2000 -- Decided May 10, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
322 N.J. Super. 236 (1999).
John R. Gonzo argued the cause for
appellants (Harwood Lloyd, attorneys).
Charles J. Lange, Jr., argued the cause for
respondent.
PER CURIAM
We affirm the judgment of the Appellate Division
substantially for the reasons set forth in its comprehensive
opinion. Runyon v. Smith,
322 N.J. Super. 236 (1999). We add
these observations to clarify the basis for our disposition and
to address the concerns of our dissenting colleagues.
We recognize the dissent's concern about instances in which
the psychologist-patient privilege must yield because of “the
potential of harm to others.” Post at __ (slip op. at 1) (O'Hern,
J., dissenting). In Kinsella v. Kinsella,
150 N.J. 276, 316
(1997), adverting to that very concern, we observed that
“[b]ecause of the unique nature of custody determinations, the
scope of the patient-psychiatrist privilege that may be claimed
by parents in relation to custody issues poses more difficult
problems that those posed by the scope of the privilege in other
situations.” We specifically acknowledged in Kinsella that
courts in custody disputes “must strike a balance between the
need to protect children who are in danger of abuse and neglect
from unfit custodians and the compelling policy of facilitating
the treatment of parents' psychological or emotional problems.”
Id. at 327.
We are not prepared on this inadequate record to agree
unqualifiedly with the Appellate Division's conclusion that, even
absent Dr. Smith's testimony, “there was sufficient evidence from
plaintiff's friend and from Mr. Runyon to justify awarding
temporary custody of the children to Mr. Runyon.” 322 N.J.
Super. at 245. We simply cannot assess in hindsight whether the
testimony of Mr. Runyon and that of plaintiff's friend provided
an adequate basis for the Family Part's temporary custody award.
Nevertheless, all parties acknowledge that the Family Part did
not conduct the in camera review contemplated by Kinsella, 150
N.J. at 328, and apparently did not make the appropriate
determination on the record that evidence of fitness from other
sources was inadequate. We also acknowledge that the hearing in
question took place more than two years before Kinsella was
decided. However, we cannot turn back the clock and determine
now whether adherence to the Kinsella standards and procedures
would have permitted the privilege to be pierced. Indisputably,
those standards and procedures were not observed. We therefore
conclude, as did the Appellate Division, 322 N.J. Super. at 246,
that “Dr. Smith's testimony at the January hearing and her
subsequent report violated the psychologist-patient privilege.”
We acknowledge that in certain circumstances a psychologist
may have a duty to warn and protect third parties or the patient
from imminent, serious physical violence. As part of that duty,
the psychologist would be required to disclose confidential
information obtained from a patient. See N.J.S.A. 2A:62A-16.
Nothing in this record demonstrates that the children were
exposed to danger of a degree that approached the level of danger
that triggers the statutory duty to warn. Moreover, Dr. Smith's
testimony occurred about six months after her last session with
plaintiff. That six-month interval is itself inconsistent with
the statutory standard of “imminent serious physical violence.”
N.J.S.A. 2A:62A-16b(1).
We also are in accord with the Appellate Division's
conclusion that a psychologist who fails to assert her patient's
privilege and discloses as a witness confidential information
concerning that patient without a court determination that
disclosure is required may be liable for damages to the patient.
See Stempler v. Speidel,
100 N.J. 368, 375-77 (1985) (discussing
liability of physicians in general for unauthorized disclosure of
confidential information). The dissent argues persuasively,
however, that plaintiff incurred no recoverable damages as a
result of Dr. Smith's disclosures, asserting that the result of
the custody dispute would have been the same even if her
testimony had been excluded. Post at ___ (slip op. at 3-4)
(O'Hern, J., dissenting). That plaintiff may not prevail on her
claim for damages does not affect her right to pursue it.
Because the issue is not before us, however, we express no view
on the merits of plaintiff's claim.
Affirmed.
JUSTICES STEIN, COLEMAN, LONG, VERNIERO, and LAVECCHIA join
in this opinion.
SUPREME COURT OF NEW JERSEY
A-
47 September Term 1999
DIANE RUNYON,
Plaintiff-Respondent,
v.
MAUREEN B. SMITH, PH.D. and
PSYCHOLOGICAL ASSOCIATES,
Defendants-Appellants.
O'HERN, J., dissenting.
I agree with the substantive analysis of the Appellate
Division's restatement of the manner in which a psychologist
should exercise responsibility in preserving a patient's
confidences. Those principles were set forth in our decision in
Kinsella v. Kinsella,
150 N.J. 276 (1997). Resolution of the
Kinsella issues is but the beginning of the analysis, not the
end.
Psychologists labor under conflicting sets of duties. They
have a duty to respect the confidences of a patient, but
exceptions do exist. Psychologists cannot always ignore the
potential for harm to others.
The seminal case regarding the duty of a
psychiatrist [or psychologist] to protect
against the conduct of a patient is Tarasoff
v. Regents of Univ. of Cal.,
17 Cal.3d 425,
551 P.2d 334,
131 Cal. Rptr. 14 (1976). In
Tarasoff the plaintiffs alleged the defendant
therapists had a duty to warn their daughter
of the danger posed to her by one of the
therapists' patients. The Tarasoff
plaintiffs were parents of Tatiana Tarasoff,
a young woman killed by a psychiatric
patient. Two months prior to the killing,
the patient informed his therapist that he
intended to kill a young woman. Although the
patient did not specifically name Tatiana as
his intended victim, plaintiffs alleged, and
the trial court agreed, that the defendant
therapists could have readily identified the
endangered person as Tatiana.
Applying Restatement (Second) of Torts §
315 (1965) to the facts before it, the
Tarasoff court held the patient-therapist
relationship was sufficient to support the
imposition of an affirmative duty on the
defendant for the benefit of third persons.
Tarasoff, 17 Cal.
3d at 435,
131 Cal. Rptr. 14,
551 P.2d 334. The Tarasoff court ruled
that when a psychotherapist determines, or,
pursuant to the standards of the profession,
should determine, that a patient presents a
serious danger of violence to another the
therapist incurs an obligation to use
reasonable care to protect the intended
victim against such danger. Tarasoff, 17
Cal.
3d at 435,
131 Cal. Rptr. 14,
551 P.2d 334. According to the Tarasoff court,
discharge of the duty may require the
therapist to take whatever steps are
necessary under the circumstances, including
possibly warning the intended victim or
notifying law enforcement officials.
[Petersen v. State,
671 P.2d 230,
236 (Wash. 1983) (emphasis added).]
This psychologist may have erred in not asserting her
patient's privilege. She may have believed that she was under a
duty to do so, being in the presence of a court that expressed no
concern for the propriety of her conduct. One thing is clear,
there is no evidence that she intended to do anything but that
which was best for the involved children.
We generally try to avoid “unnecessary court events.” State
v. Shaw,
131 N.J. 1, 13 (1993). We should do that here.
Although Kinsella had not been decided when the psychologist
testified in the custody case, the trial court was fully aware of
the principles of Kinsella when it dismissed the patient's
subsequent complaint for malpractice. The trial court was also
fully aware of the principles that govern a professional
malpractice action against a psychologist.
The plaintiff in a malpractice action based
on tort must establish four elements to make
out a prima facie case. . . . When the
plaintiff is a patient and the defendant is
the patient's therapist, Schultz tells us
that the four key elements necessary to prove
malpractice are: “(1) that a therapist
patient relationship was established; (2)
that the therapist's conduct fell below the
acceptable standard of care; (3) that this
conduct was the proximate cause of the injury
to the patient; and (4) that an actual injury
was sustained by the patient.” In the
particular case of a patient suing a
therapist for breach of confidentiality, the
most difficult hurdles to overcome, showing
malpractice has taken place, are “whether the
standard of care to which the psychotherapist
is obliged to conform encompasses
confidentiality, whether the duty is breached
by disclosure and whether recoverable damages
are incurred.”
[Ellen W. Grabois, The Liability of
Psychotherapists for Breach of
Confidentiality,
12 J.L. & Health 39, 68-69
(1998).]
Even assuming that plaintiff can establish by competent
expert testimony that Dr. Smith's conduct fell below the
acceptable standard of care,See footnote 11 no “recoverable damages” were
incurred. Grabois, supra, 12 J.L. & Health at 69.
In the analogous context of attorney malpractice in a
custody dispute,
[t]he client bringing a legal malpractice
action has a heavy burden. The plaintiff
must effectively prove two cases; the one
giving rise to the malpractice action, and
the one for legal malpractice. For example,
in a malpractice action stemming from a child
custody dispute, the jury must determine the
custody issue, using the appropriate legal
principles in order to make a determination
of the legal malpractice action. The case
within-a-case approach speaks to the elements
of causation and damages, for only after
making a determination of the case below can
a jury find that the attorney's negligence
was the proximate cause of the client's loss.
If a jury finds the attorney was in fact
negligent, but the underlying claim would
have, absent this breach of duty, been
resolved in the same manner, it cannot be
said that the attorney's negligence caused
damage.
[Andrew S. Grossman, Avoiding Legal
Malpractice In Family Law Cases: The Dangers
of Not Engaging in Formal Discovery,
33 Fam.
L.Q. 361, 367 (1999).]
The trial court has already determined that not only would
the psychologist's evidence have been admissible in the custody
action, the outcome of the custody dispute would have been the
same whether or not the evidence was introduced.
No viable claim for emotional distress damages has been
presented.
Damages for [negligent infliction of]
emotional distress must be “so severe that no
reasonable man could be expected to endure
it.” Buckley v. Trenton Savings Fund. Soc.,
111 N.J. 355, 366-67 (1988) (citation
omitted). Determination of whether emotional
distress can be found in a particular case is
a question of law for a court to decide,
leaving the jury to decide if it had been
proved in fact. Id. at 367. Here,
plaintiff's upset, embarrassment and anxiety
are no more severe than was Buckley's loss of
sleep, aggravation, headaches, nervous
tension and embarrassment which the Supreme
Court held was not severe. As in Buckley,
because there is no severe emotional
distress, further examination into the intent
of the tortfeasor is not warranted.
[Rocci v. MacDonald-Cartier,
323 N.J. Super. 18, 25 (App. Div. 1999).]
In short, the Court has perceived the tip of the iceberg.
The Court would do well to look under the surface of the water to
perceive the formidable reasons why this case should be
concluded. A futile rerun of the custody trial will only serve
to reopen old wounds. It is time to end the discord. Lawsuits
are not the solution to every problem. Ethics disciplinary
boards are better suited to resolving this problem.
For most licensed and trained
psychotherapists, this confidential
relationship will be spelled out in
professional ethical codes and state
statutes. Therapists, therefore, must be
alert to situations in which they are called
upon to reveal information about their
patients. Therapists are protected by
privilege statutes, but exceptions do exist.
Psychotherapists must educate themselves with
respect to these statutes, especially since
we live in a time in which third party payors
and others will seek to know more about the
patient's prognosis and the usefulness of the
psychotherapy. Patients, too, must be alert
and inquisitive, and ask that their
therapists inform them of any requests for
confidential information.
[Grabois, supra, 12 J.L. & Health at 84.]
Because the issue remaining in this case is one of
professional responsibility, not one of “recoverable damages,” I
would reinstate the judgment of the Law Division dismissing the
plaintiff's complaint for malpractice.
The Chief Justice joins in this opinion.
NO. A-47 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DIANE RUNYON,
Plaintiff-Respondent,
v.
MAUREEN B. SMITH, Ph.D and
PSYCHOLOGICAL ASSOCIATES,
Defendants-Appellants.
DECIDED May 10, 2000
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY Justice O'Hern
Footnote: 1 1Even if the Tarasoff principles did not authorize disclosure, “statements made during joint counseling are not privileged in litigation between the joint patients.” Redding v. Virginia Mason Medical Center, 878 P.2d 483, 485 (Wash. Ct. App. 1994). Dr. Smith counseled the parties jointly.