Magney v. Pham

Summary

The Washington Supreme Court held that parents did not automatically waive the statutory marital counseling privilege by filing a medical negligence action seeking damages including mental anguish and loss of consortium. The court rejected extending an automatic waiver rule from the physician-patient privilege to the marital counseling privilege because RCW 5.60.060(9) does not provide for such a waiver. It remanded for in camera review to determine whether the privilege had been impliedly waived and whether any counseling records were relevant and discoverable.

Holdings

1. Filing a medical negligence lawsuit seeking damages for mental anguish and loss of consortium does not automatically waive the marital counseling privilege because RCW 5.60.060(9) does not enumerate filing such an action as an exception or waiver event.
2. The absence of automatic waiver does not preclude implied waiver, and the record was insufficient for the Supreme Court to determine whether the Magneys had impliedly waived the privilege through their disclosures or litigation conduct.
3. When the holder of the marital counseling privilege requests it, the trial court must conduct in camera review of the counseling records to determine whether privilege was impliedly waived and, if so, which records or portions are relevant and discoverable.

Questions Presented

1. Whether filing a medical negligence action seeking damages for mental anguish and loss of consortium automatically waives the marital counseling privilege under RCW 5.60.060(9).
2. Whether the record permitted the Supreme Court to determine whether the Magneys had impliedly waived the privilege.
3. Whether the superior court was required to conduct in camera review of the marital counseling records when the privilege holders requested it.

Disposition

reversed_and_remanded