Can the Defense See My Therapy Records? Protecting Your Privacy in an Emotional Distress Claim


The decision to seek compensation for mental anguish often comes with a significant worry: "Will my private therapy sessions be exposed in court?" For many, the thought of a defense attorney combing through their most intimate conversations is enough to make them reconsider filing a claim altogether.

In the United States, your mental health records are protected by powerful privacy laws, but those protections are not absolute when you initiate a lawsuit. Understanding the "Psychotherapist-Patient Privilege" and how it changes during litigation is crucial to protecting your privacy while pursuing justice.

The Shield: What is Psychotherapist-Patient Privilege?

Under both federal and state laws, the communications between you and your mental health provider (psychiatrist, psychologist, or licensed clinical social worker) are generally "privileged." This means that, under normal circumstances, a court cannot compel your therapist to testify or hand over their notes without your explicit consent.

This privilege exists because the legal system recognizes that effective therapy depends on an atmosphere of total confidence and trust. However, once you file a lawsuit claiming emotional distress, you may inadvertently lower this shield.

The "Garden Variety" vs. Severe Distress Distinction

In many jurisdictions, the extent to which your records are "discoverable" by the defense depends on the severity of your claim.

1. Garden Variety Claims

If you are seeking damages for "garden variety" emotional distress—meaning the typical distress, sadness, or humiliation that any reasonable person would feel after an accident—courts often rule that your privilege remains intact. In these cases, you are not claiming a specific psychiatric disorder or using an expert witness, so the defense usually cannot access your past records.

2. Severe or Specific Psychic Injury

If you claim that the defendant caused a specific, diagnosable condition like PTSD, major depressive disorder, or a permanent psychic injury, you have "placed your mental health at issue." By doing so, the defense gains a legal right to verify your claims. They may argue that your current distress was actually caused by a pre-existing condition or a different life event, making your therapy records relevant evidence.

How the Defense Attempts to Access Your Records

If the defense believes your mental health is a central issue, they will use several legal tools to obtain information:

  • Subpoenas: An attorney may send a formal demand to your therapist for your entire medical file. It is important to know that a subpoena is not a court order; your therapist can—and often should—object until a judge weighs in.

  • Depositions: You may be asked questions about your treatment history under oath.

  • Independent Medical Examinations (IME): The defense may request that you be evaluated by a psychiatrist of their choosing to provide a second opinion on your diagnosis.

Strategies to Protect Your Privacy

You do not have to choose between your privacy and your settlement. There are several ways your legal team can limit the exposure of your private life:

Protective Orders

Your attorney can request a "protective order" from the judge. This order ensures that even if records are shared with the defense, they are kept strictly confidential. They cannot be shared with the public, and they must be destroyed or returned once the case is over.

In-Camera Review

You can ask the judge to conduct an "in-camera review." This means the judge looks at your therapy notes in private—away from the defense—to decide which parts are actually relevant to the case. For example, if you are suing over a car accident, the judge might allow records about your accident-related anxiety but block notes about your childhood or unrelated family issues.

Redaction

Attorneys can often agree to "redact" (black out) sensitive information in your medical records that has no bearing on the legal claim, such as the names of family members or details about unrelated health issues.

The Difference Between Progress Notes and Psychotherapy Notes

Under the Health Insurance Portability and Accountability Act (HIPAA), there is a critical distinction that can help protect you:

  • Progress Notes: These include your diagnosis, symptoms, treatment plan, and medication. These are part of your official medical record and are easier for the defense to access.

  • Psychotherapy Notes: These are the therapist's private, handwritten observations and analysis of your conversations. HIPAA gives these notes a much higher level of protection, and they are rarely disclosed in a standard personal injury case unless a judge issues a specific, narrow order.

Summary: Know Your Rights

While filing an emotional distress claim does open a window into your private life, it does not mean your entire history is up for grabs. By working closely with an attorney who understands mental health privacy, you can maintain boundaries while proving the impact the incident had on your life.

Before you sign any medical release forms provided by an insurance company, consult with your legal counsel. You have the right to limit the scope of what is shared and to ensure your path to healing remains as private as possible.


How to Sue for Emotional Distress: A Complete Legal Guide to Recovering Damages