In what circumstances will a psychotherapist be immunized from liability for disclosing information about a patient in a judicial proceeding?

Reversing the judgment, we saw the need to engage in "a balancing of the policy underlying Civil Code section 47, subdivision 2, with [the plaintiff's] right to maintain the privacy of communication with his psychotherapist." (Cutter v. Brownbridge, supra, 183 Cal.App.3d at p. 844, fn. omitted.) The psychotherapist-patient privilege statutes in Evidence Code, section 1010 et seq., in fact provided "a comprehensive scheme by which the need for ascertaining the truth in judicial proceedings can be balanced with a patient's right to privacy." (Cutter v. Brownbridge, supra, at p. 845.) Thus, a psychotherapist who claims the statutory privilege satisfies constitutional privacy concerns and is immunized by Civil Code section 47 from any liability for disclosures in a judicial proceeding, but "a psychotherapist who volunteers information concerning a patient obtained in connection with their relationship, does so at his or her peril." (Cutter v. Brownbridge, supra, at p. 847.)

Since the defendant psychotherapist in Cutter executed the declaration without seeking a judicial ruling on its admissibility, he was not protected by the litigation privilege. The decision concluded, "We have determined that the constitutional right to privacy outweighs the policies underlying the judicial proceedings immunity when private material is voluntarily published, without resort to a prior judicial determination." (Cutter v. Brownbridge, supra, 183 Cal.App.3d at p. 848.)

Nine years ago, we applied our analysis in Cutter to facts similar to the present case in Urbaniak v. Newton, supra, 226 Cal.App.3d 1128. During a physical examination ordered by a workers' compensation insurance carrier, the plaintiff disclosed his HIV positive status to a nurse after certain sharp electrodes drew blood. The examining physician relied on this disclosure in a report to the insurance carriers recommending denial of insurance coverage. We regarded the communication as coming within the protections of California Constitution, article I, section 1, but saw a valid claim only against the examining physician. In our view, the insurance company and its attorneys did not interfere with the plaintiff's privacy interest: "They received the disclosure in a context-the report of a physician retained by the defense in discovery proceedings-that did not indicate a confidential communication, and the evidence does not reveal that they had actual notice of facts suggesting an invasion of privacy." (Urbaniak v. Newton, supra, at p. 1141, fn. omitted.) Moreover, even if plaintiff could state a constitutional claim for invasion of privacy against these parties, it would be barred by the litigation privilege of Civil Code section 47, subdivision (b).