LawyersUSA

A family counselor could not be liable for the disclosure of confidential information in the course of her testimony as a witness in the plaintiff's divorce case, the Washington Supreme Court has ruled.

The defendant provided individual and family counseling to the plaintiff and his wife several years before their marriage ended.

In the course of the divorce proceeding, the defendant discussed her views about the couple with a guardian ad litem appointed to represent the interests of the plaintiff's children. Moreover, she testified for the plaintiff's wife in a child custody proceeding. The wife ultimately obtained primary custody.

The plaintiff sued the defendant for disclosing private information in violation of the state's health care information act. In addition, he sued the defendant for negligence.

The defendant argued that her testimony was absolutely privileged under the protections afforded witnesses in litigation proceedings.

But the court concluded that the confidentiality provisions of state health care law trumped witness immunity, explaining the "first of these statutes plainly contemplates that the Act applies when disclosure is sought during or in preparation for judicial proceedings, and the second plainly provides a cause of action for noncompliance with the Act. Thus, the Act shows the legislature's intent to allow a cause of action notwithstanding the witness immunity rule."

The court nonetheless concluded that the plaintiff had waived his statutory claims by failing to object to the defendant's testimony at the child placement hearing.

In addition, the court concluded that witness immunity did apply to bar the plaintiff's negligence claims.

"[The plaintiff's] negligence claims are not based on misdiagnosis or negligent treatment, but rather on alleged negligence in testifying beyond the scope allowable under applicable standards of care. This kind of testimony is clearly encompassed by the witness immunity rule," the court said.

Washington Supreme Court. Wynn v. Earin, No. 78247-4. April 3, 2008. Lawyers USA Nos. 9939650 (majority) and 9939651(concurrence).

Click here to read the full text of the majority opinion, and click here to read the concurrence.