Doug Brayley Comments in Massachusetts Lawyers Weekly on the Issue of Therapy Records Privilege

In The News
May 17, 2022

Employment, executive compensation and employee benefits partner Doug Brayley commented in Massachusetts Lawyers Weekly on recent efforts by a judge to set rules in the gray area of mental health records privilege. In Massachusetts, a plaintiff can shield their therapy or treatment records as long as they are only seeking damages for “garden variety” emotional stress. But there is no official consensus on what constitutes “garden variety” distress as opposed to severe psychological injury, and different courts have applied this ambiguous framework inconsistently. 

In April, Suffolk Superior Court Judge Robert B. Gordon attempted to clarify the issue by laying out specific circumstances that would determine whether a plaintiff’s privilege to mental health records would be recognized. He also gave instructions to a jury outlining compensation for emotional distress. Doug agreed that Gordon’s approach would “promote predictability” in these types of matters. 

Doug explained that through this framework, “[the plaintiff] no longer needs to worry about painstakingly crafting her complaint for damages in the hope that a judge will discern only garden variety distress in its language… [and the defendant is spared] the dilemma of having to rebut a claim for extraordinary damages without the probative evidence it needs to build a defense.”