Witness immunity does not apply to Health Care Information Act violations

By Janine E. Leary

Witness immunity does not apply to information disclosed in violation of the Health Care Information Act (HCIA), but may apply to testimony relating to information acquired during a professional relationship formed for non-litigation purposes, the Washington Supreme Court has held.

In Wynn v. Earin, no. 78247-4 (April 3, 2008), Jolene Earin, a mental-health professional, provided individual and joint marital counseling to Pardner Wynn and his wife, Cynthia. Mr. Wynn viewed Ms. Earin as sympathetic to his wife and hostile toward him, and he stopped seeing her.

The Wynns began dissolution proceedings with residential placement of their children. The court appointed Dr. Kim Chupurdia as guardian ad litem for the children. Dr. Chupurdia contacted Ms. Earin, who disclosed significant information, including her recommendation that the children be placed with Mrs. Wynn, despite not having a release in hand as the HCIA required.

Mr. Wynn obtained a court order requiring Ms. Earin to produce his counseling records to contest her claims, but the records had been stolen from her unlocked car. At the hearing to determine child placement, Ms. Earin testified on Mrs. Wynn’s behalf, and the court ordered placement of the children with Mrs. Wynn

Mr. Wynn sued Ms. Earin for her disclosure of information from the counseling sessions without a release, her testimony at the hearing, and her failure to protect Mr. Wynn's counseling records. Prior to trial, the court dismissed Mr. Wynn’s claims related to Ms. Earin’s appearance and testimony at the hearing to determine child placement, on the basis that these claims were barred by witness immunity.

The Court of Appeals reversed, holding that the HCIA prevailed over witness immunity as to Mr. Wynn’s statutory claims. But the court also held that the witness-immunity rule did not bar Mr. Wynn’s malpractice claims relating to Ms. Earin's appearance and testimony. Mr. Wynn petitioned for and obtained review by the Washington Supreme Court.