This Note interprets the federal court split regarding waiver of the psychotherapist-patient privilege created in the aftermath of Jaffe v. Redmond. As Jaffe's landmark holding ages, case law addressing the issue of waiver in this context becomes progressively polarized. Some post-Jaffe rulings insist that a plaintiff must place privileged information at issue during trial in order to waive the privilege. Still others stubbornly hold that a plaintiff merely asserting a claim for emotional damages waives the privilege. Scholars have given little attention to this inconsistency; it is imperative, however, that the two schools be unified. Traditional views should be modernized if not for the sake of consistency, then to prevent a patient from having to make the proverbial Hobson's choice when initiating a course of psychotherapy treatments. The longer the two Jaffe interpretations go unreconciled, the longer we thwart the fundamental elements of a psychotherapist-patient relationship.
Ellen E. McDonnell,
Certainty Thwarted: Broad Waiver Versus Narrow Waiver of the Psychotherapist-Patient Privilege after Jaffee v. Redmond,
52 Hastings L.J. 1369
Available at: https://repository.uchastings.edu/hastings_law_journal/vol52/iss6/4