On behalf of Licatesi Law Group, LLP on Tuesday, February 14, 2012.

I came across a recent decision regarding the disclosure of mental health records, which got me thinking about disclosure in general. Many clients tell me that one of the reasons they didn’t know if they should start a personal injury lawsuit even though they are seriously injured is because they are afraid of what the other side will find out about them. Maybe they were previously arrested, but never convicted; Maybe they had an embarrassing disease that will show up in medical records; or maybe, as in this case, they have a mental illness which they do not want to be brought out in front of a court room full of people.

Unfortunately, insurance carriers do have a right to some of the aforementioned information, but luckily, there are some safeguards in place in order to ease the mind of potential clients. First, the Defendant insurance company is only allowed to question a Plaintiff about convictions. This means that if you were arrested, but the case was dismissed, adjourned, or hasn’t even gone to trial yet, then you don’t have to tell the other side about it. In fact, seasoned attorneys, such as the attorneys as the attorneys at Licatesi Law Group, LLP would object to an insurance company questioning a plaintiff if they have ever been arrested, as it is an improper question. Basically, unless a jury of your peers has found you guilty for the crime you were arrested for, you do not have to disclose your arrest.

The Appellate Division, First Department, recently held that mental health records were also off limits. In Churchill v Malek, 2011 NY Slip Op 03673, the Court held that when “there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 [1995]), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 [1988]), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 [1997]).”

Logically, this makes so much sense, and is another small victory for the good guys. Think about it: For example, what does the fact that someone has been diagnosed bi-polar have to do with the broken arm they sustained in a car accident? Absolutely nothing, and is just yet another abusive tactic used by insurance companies to attempt to make a seriously injured Plaintiff look bad to a jury in some way.

The Court in this case also held “Defendant’s unsubstantiated claim that plaintiff’s mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994]).” This language makes me think that in order for a plaintiff to be compelled to disclose such records, Defendant must have actual evidence that a mental illness caused the accident, and not just claim. Defendant’s assertion that the fact that the plaintiff has a mental illness somehow contributed to an accident just because is not going to cut it. For more questions, please don’t hesitate to call me (516) 478-0237.