Untangling Charlotte's Web - UW Law School

NOTE
UNTANGLING CHARLOTTE’S WEB: BALANCING THE
CONFIDENTIALITY RIGHTS OF PATIENTS AND THIRD-
PARTY NEGLIGENT-THERAPY CLAIMS IN JOHNSON V.
ROGERS MEMORIAL HOSPITAL
ELIZABETH ROBERSON-YOUNG *
I. Introduction.............................................................................. 1684
II. Overview of the Therapist-Patient Privilege............................ 1685
A. The Origins and Underlying Policy of the Therapist-
Patient Privilege................................................................ 1686
B. The U.S. Supreme Court’s Affirmation of the Privilege
in Jaffee v. Redmond......................................................... 1687
C. Exceptions to the Therapist-Patient Privilege................... 1690
1. Statutory Exceptions ................................................... 1690
2. Common-Law Exceptions .......................................... 1692
III. Overview of Third-Party Negligent-Therapy Claims .............. 1693
A. The Origin of Third-Party Claims: Tarasoff v. Regents of
the University of California .............................................. 1694
B. Post-Tarasoff Developments: Expanding Third-Party
Malpractice Claims Beyond Threats of Violence Made
by Patients Toward Third Parties...................................... 1696
IV. Discussion of Johnson v. Rogers Memorial Hospital.............. 1699
A. Introduction to the Johnson Litigation.............................. 1700
B. The Plurality’s Analysis ................................................... 1703
C. Justice Prosser’s Concurrence .......................................... 1710
D. Justice Wilcox’s Concurrence and Dissent....................... 1712
E. Justice Bradley’s Dissent.................................................. 1712
F. The Outcome in Johnson .................................................. 1715
V. After Johnson........................................................................... 1715
A. The Impact of Johnson on Further Development of the
Law ................................................................................... 1716
B. The Practical Impact of Johnson on Litigators and
* J.D., University of Wisconsin, expected 2007. I would like to thank
Bonnie Cosgrove, Katie Mason, and the Wisconsin Law Review for
invaluable guidance and assistance in writing and editing this Note. I
would also like to thank Linda Roberson and Gary Young for suggesting
this topic. Finally, I would like to thank my family and friends for
their patience, support, and encouragement.

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Therapists.......................................................................... 1719
1. Johnson’s Impact on Therapists.................................. 1719
2. Johnson’s Impact on Future Litigation ....................... 1720
VI. Conclusion ............................................................................... 1721
I. INTRODUCTION
In 1991,’ Charlotte Johnson sought counseling for a variety of
mental-health complaints. 1 Her therapist, Kay Phillips, referred Charlotte
to Rogers Memorial Hospital for inpatient treatment for eating and
addictive disorders. 2 Charlotte’s parents contracted with Rogers
Memorial to pay for her inpatient care. 3 During her one-month
hospitalization, Charlotte came to believe that she had been physically
and sexually abused as a child. 4 Specifically, she believed that her father,
Charles, and her paternal grandfather had both raped her and that her
mother, Karen, had beaten her and attempted to kill her with a knife and
to drown her. 5
Charlotte confronted her father with her memories of abuse during
her inpatient treatment and confronted her mother at a meeting with her
therapists two years later. 6 Charles and Karen both denied the sexual and
physical abuse, but Charlotte continued to believe the abuse occurred and
terminated her relationship with her parents. 7 On May 29, 1996, Charles
and Karen filed a third-party medical-malpractice claim against
Charlotte’s therapists and their employers, alleging that the therapists had
negligently implanted false memories of abuse and continued to
reinforce those false memories through ongoing negligent therapy. 8
Charlotte, in response and on behalf of her medical providers, asserted
that her therapist-patient privilege barred Charles and Karen’s suit. 9 In
the case’s second journey to the Wisconsin Supreme Court, the court
1. Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, 6, 283 Wis. 2d 384,
700 N.W.2d 27.
2. Id.
3. Johnson v. Rogers Mem’l Hosp., Inc., 2000 WI App 166, 2, 238 Wis. 2d
227, 616 N.W.2d 903, rev’d and remanded, 2001 WI 68, 244 Wis. 2d 364, 627 N.W.2d
890.
4. See Johnson, 2005 WI 114, 7.
5. Id. 7 n.5.
6. Johnson, 2000 WI App 166, 3; see also Johnson, 2005 WI 114, 7.
7. Johnson, 2005 WI 114, 8.
8. See id. 9.
9. See id. 10-12.

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established a novel public-policy exception to the therapist-patient
privilege. 10
The Wisconsin Supreme Court’s 2005 Johnson v. Rogers Memorial
Hospital decision represents a significant expansion of Wisconsin’s
third-party negligent-therapy jurisprudence—offering plaintiffs more
meaningful tort rights on the one hand, while carving out a substantial
and unprecedented exception to patients’ confidentiality rights on the
other. This Note analyzes Johnson in light of prior law on the therapistpatient
privilege and third-party negligent-therapy claims.
Part II provides an overview of the therapist-patient privilege and its
exceptions, examining the policy behind the privilege and the impact of
the U.S. Supreme Court’s recent affirmation of the privilege in Jaffee v.
Redmond. 11 Part III examines the second doctrine at stake in Johnson,
assessing third-party negligent-therapy claims from their origin in
Tarasoff v. Regents of the University of California 12 to Wisconsin’s
modifications and extensions of this doctrine. Part IV discusses Johnson
in depth, considering the competing policies emphasized by the plurality,
concurrences, and dissent. Part V considers the Johnson compromise in
light of the twin legal doctrines of privilege and negligent-therapy
claims. This Part argues that the Johnson plurality opinion represents a
departure from the strong affirmation of the therapist-patient privilege in
Jaffee, leaving both patients’ rights to confidentiality and medical
providers’ liability risks in legal limbo.
This Note concludes that, while the plurality opinion in Johnson
admirably attempts to resolve the sharp conflict between patients’
confidentiality rights and third parties’ tort rights, it does so at the
expense of patients’ rights and clarity and consistency in the law.
Because the Johnson compromise fails to provide adequate guidance for
lower courts or any real resolution for the Johnson family, courts
addressing third-party negligent-therapy claims in the future should pay
heed to the dissent’s caution and construe Johnson narrowly.
II. OVERVIEW OF THE THERAPIST-PATIENT PRIVILEGE
The Wisconsin Supreme Court’s decision in Johnson draws on the
complex history of the general law of privilege and the specific commonlaw
and statutory therapist-patient privileges. A brief overview of the
10. See id. 4-5; Johnson v. Rogers Mem’l Hosp., Inc., 2001 WI 68, 244 Wis.
2d 364, 627 N.W.2d 890.
11. 518 U.S. 1 (1996).
12. 551 P.2d 334 (1976) (holding a therapist liable for failing to warn his
patient’s intended victim of the serious danger posed by the patient).

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privilege is therefore useful in understanding the Johnson court’s use of
both the common-law and statutory traditions in support of its new
public-policy exception to the therapist-patient privilege. 13
A. The Origins and Underlying Policy of the Therapist-Patient
Privilege
As a general rule, courts have long recognized that “the public . . .
has a right to every man’s evidence.” 14 Because this fundamental
principle is essential to the fact-finding process, courts must begin their
analysis of exceptions to the general rule by assuming that there is “a
general duty to give what testimony one is capable of giving.” 15 A
“public good transcending the normally predominant principle of
utilizing all rational means for ascertaining truth” can justify these
exceptions. 16 Courts usually narrowly construe testimonial privileges
because such privileges run contrary to the search for truth that typically
characterizes judicial proceedings. 17
The therapist-patient privilege serves as a compromise between two
competing policy interests: admitting probative evidence at trial and the
need for confidence and trust between patient and therapist. 18 Statutes
generally confer this privilege. 19 As the Supreme Court has observed,
“[t]he purpose behind the physician-patient privilege is ‘to enhance the
13. This Note uses the terms “therapist” and “psychotherapist” interchangeably
as they are fungible in the privilege literature.
14. Jaffee, 518 U.S. at 9 (quoting United States v. Bryan, 339 U.S. 323, 331
(1950)); accord Johnson, 2005 WI 114, 59 (quoting State v. Echols, 152 Wis. 2d 725,
737, 449 N.W.2d 320, 324 (Ct. App. 1989)).
15. See Jaffee, 518 U.S. at 9 (quoting Bryan, 339 U.S. at 331).
16. Id. (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)).
17. See, e.g., id. at 19-20 (Scalia, J., dissenting) (arguing that the Supreme
Court has historically rejected the adoption of new evidentiary privileges and has
narrowly construed existing ones); United States v. Nixon, 418 U.S. 683, 710 (1974)
(“[E]xceptions to the demand for every man’s evidence are not lightly created nor
expansively construed, for they are in derogation of the search for truth.”).
18. See Jaffee, 518 U.S. at 9-12 (discussing the importance of both admitting
relevant evidence and the psychotherapist-client privilege).
19. See id. at 12 (“[A]ll fifty states and the District of Columbia have enacted
into law some form of psychotherapist privilege.”). Although most states apply the
privilege to mental-health workers generally, a few states limit the privilege’s application
to psychiatrists and psychologists—excluding, for instance, social workers or psychiatric
nurses. See id. at 14 n.13. Wisconsin’s privilege applies to communications between a
patient and physician, registered nurse, chiropractor, psychologist, social worker,
marriage and family therapist, professional counselor, or other people participating in the
diagnosis or treatment of the patient under the direction of any of the above-mentioned
personnel. WIS. STAT. § 905.04(2) (2005-2006).

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effective diagnosis and treatment of illness by protecting the patient from
the embarrassment and humiliation that might be caused’ through
disclosure of that information.” 20 The privilege “is grounded in the
public policy ‘to encourage the patient to talk freely without fear of
disclosure and embarrassment, thus enabling psychotherapists to render
effective treatment of the patient’s emotional or mental disorders.’” 21
B. The U.S. Supreme Court’s Affirmation of the Privilege in Jaffee v.
Redmond
In Jaffee, the estate of a man shot and killed by a police officer
brought a wrongful-death suit against the officer and her employer. 22
During pretrial discovery, the estate asked the officer to produce notes
taken during her counseling sessions with a psychotherapist. 23 The
officer refused to provide the notes, asserting that psychotherapist-patient
privilege protected her conversations with the psychotherapist against
involuntary disclosure. 24 This argument did not persuade the trial court,
but neither the officer nor the psychotherapist complied with the court’s
order to produce the notes. 25 In response to the defendant’s failure to
comply, the district judge instructed the jury that there was no legal
justification for the officer’s failure to respond, and “that the jury could
therefore presume that the contents of the notes would have been
unfavorable” to the officer. 26 The jury found in favor of the petitioner
and awarded the estate $545,000 in damages. 27
On appeal, the United States Court of Appeals for the Seventh
Circuit held as a matter of first impression that Rule 501 of the Federal
Rules of Evidence compelled recognition of a psychotherapist-patient
privilege. 28 The Seventh Circuit crafted a balancing test for determining
20. Weil v. Dillon Cos., 109 P.3d 127, 129 (Colo. 2005) (quoting Hoffman v.
Brookfield Republic, Inc., 87 P.3d 858, 861 (Colo. 2004)).
21. Willett v. State, 479 S.E.2d 132, 136-37 (Ga. Ct. App. 1996) (quoting Wiles
v. Wiles, 448 S.E.2d 681, 682 (Ga. 1994)).
22. See Jaffee, 518 U.S. at 4-5.
23. Id. at 5.
24. Id.
25. Id.
26. Id. at 5-6.
27. Id. at 6.
28. See Jaffee v. Redmond, 51 F.3d 1346, 1354-55 (7th Cir. 1995), aff’d 518
U.S. 1 (1996). Rule 501 provides as follows:
Except as otherwise required by the Constitution of the United States or
provided by Act of Congress or in rules prescribed by the Supreme Court
pursuant to statutory authority, the privilege of a witness, person,
government, State, or political subdivision thereof shall be governed by the

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when the privilege should apply, stating that the new privilege was
inapplicable if, “in the interests of justice, the evidentiary need for the
disclosure of the contents of a patient’s counseling sessions outweighs
that patient’s privacy interests.” 29 The U.S. Supreme Court granted
certiorari to resolve disagreement among the circuits as to whether
federal courts should recognize a psychotherapist-patient privilege. 30
In affirming the Seventh Circuit’s judgment, the Supreme Court
considered at length the policies supporting and militating against the
privilege. It first discussed the legislative history of Rule 501, which
permits courts to define new privileges dictated by “reason and
experience.” 31 The Court next considered whether, in light of Rule 501,
“a privilege protecting confidential communications between a
psychotherapist and her patient ‘promotes sufficiently important interests
to outweigh the need for probative evidence.’” 32 Justice John Paul
Stevens, writing for the majority, observed that “the psychotherapistpatient
privilege is ‘rooted in the imperative need for confidence and
trust.’” 33 Moreover, the facts and emotions conveyed in psychotherapy
are particularly likely to be precisely the kind of communications which
would most embarrass or disgrace a patient upon disclosure. 34 Because
psychotherapy’s effectiveness depends upon that “confidence and
trust”—patients who do not trust their therapists are less likely to confide
in them—”the mere possibility of disclosure may impede development of
the confidential relationship necessary for successful treatment.” 35
The Court reasoned that the proposed privilege would serve
important private interests: those of individuals in forming successful
therapeutic relationships and recovering from mental-health problems,
principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience. However, in civil actions
and proceedings, with respect to an element of a claim or defense as to which
state law supplies the rule of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall be determined in
accordance with State law.
FED. R. EVID. 501. Federal courts generally create new common-law privileges under
Rule 501 sparingly and with caution. Cf. Lee v. DOJ, 401 F. Supp. 2d 123 (D.D.C. 2005)
(declining to extend Jaffee to create a new reporters’ privilege).
29. Jaffee, 51 F.3d at 1357.
30. Jaffee, 518 U.S. at 7-8.
31. Id. at 8; FED. R. EVID. 501.
32. Jaffee, 518 U.S. at 9-10 (quoting Trammel v. United States, 445 U.S. 40, 51
(1980)).
33. Id. at 10 (quoting Trammel, 445 U.S. at 51).
34. See id.
35. Id.

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and those of psychotherapists in doing their work. 36 The privilege also
serves the public interest in providing treatment for individuals suffering
from mental or emotional problems. 37 Justice Stevens concluded that
“[t]he mental health of our citizenry, no less than its physical health, is a
public good of transcendent importance.” 38 In contrast, the evidentiary
benefits resulting from the denial of the privilege were minimal, because
the absence of a privilege would chill communications between
therapists and patients and thus much of the evidence an adverse litigant
might seek would not exist. 39
Finally, the Court explicitly rejected the balancing test—both as
suggested by the Seventh Circuit and as implemented in a handful of
states 40 —reasoning that “[m]aking the promise of confidentiality
contingent upon a trial judge’s later evaluation of the relative importance
of the patient’s interest in privacy and the evidentiary need for disclosure
would eviscerate the effectiveness of the privilege.” 41 The Court
expressed particular concern with the unpredictability of the test, noting
that, if the privilege was to have any efficacy, both therapists and patients
needed to be able to rely upon the privilege’s protection under a
consistent set of circumstances. 42 “An uncertain privilege,” concluded
the Court, “or one which purports to be certain but results in widely
varying applications by the courts, is little better than no privilege at
all.” 43 The Court thus endorsed a comprehensive, robust privilege that
would allow patients and therapists to communicate with each other
without worrying that those communications would become discoverable
36. See id. at 10-11.
37. Id. at 11. The Court evaluated the public interest to comport with the
requirement set forth in Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)—that an
asserted privilege must serve public ends, not merely private interests. See Jaffee, 518
U.S. at 11.
38. Jaffee, 518 U.S. at 11.
39. Id. at 11-12. Jaffee’s holding is, however, limited in some important
respects. See, e.g., Merrill v. Waffle House, Inc., 227 F.R.D. 467 (N.D. Tex. 2005)
(holding that the Jaffee privilege protects only communications between psychotherapist
and patient, not the names of mental-healthcare providers or dates of treatment); United
States v. Schwensow, 942 F. Supp. 402 (E.D. Wis. 1996) (holding that the Jaffee
privilege did not protect statements to Alcoholics Anonymous volunteers because the
volunteers were not psychotherapists and because the purpose of the statements was not
to obtain treatment).
40. See Jaffee, 518 U.S. at 17 & n.18 (citing statutes from several states
including Maine, New Hampshire, and North Carolina); Jaffee v. Redmond, 51 F.3d
1346, 1357 (7th Cir. 1995) (balancing the evidentiary need for disclosure of privileged
material against a patient’s privacy interests).
41. Jaffee, 518 U.S. at 17.
42. See id. at 18.
43. Id. at 18 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

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in any future litigation. In affirming the psychotherapist-patient privilege,
the Court specifically and clearly declined to fashion case-by-case
exceptions to the privilege based on a trial judge’s assessment of the
policy implications at stake. 44
C. Exceptions to the Therapist-Patient Privilege
Although Jaffee established a robust common-law psychotherapistpatient
privilege, that privilege is not without exception. 45 Because it
serves as a compromise between the competing policy interests of
admitting probative evidence and promoting confidence and trust
between patient and therapist, courts and legislatures have crafted limited
exceptions to the privilege in cases in which one policy interest weighs
more heavily. These exceptions can be either statutory or derived from
the common law.
1. STATUTORY EXCEPTIONS
Statutes granting the therapist-patient privilege often contain
numerous implicit limitations of the privilege’s reach. Wisconsin
Statutes section 905.04 is typical of statutory enactments of the privilege:
A patient has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications
made or information obtained or disseminated for purposes of
diagnosis or treatment of the patient’s physical, mental or
emotional condition, among the patient, the patient’s physician,
the patient’s registered nurse, the patient’s chiropractor, the
44. See id. at 17. The Jaffee Court acknowledged one possible exception to its
ringing affirmation of the privilege: in a footnote, it observed that it “[did] not doubt that
there [were] situations in which the privilege must give way, for example, if a serious
threat of harm to the patient or to others [could] be averted only by means of a disclosure
by the therapist.” Id. at 18 n.19. The Courts of Appeals have interpreted these exceptions
to privilege in cases involving physical harm to a third party with divergent results.
Compare United States v. Hayes, 227 F.3d 578 (6th Cir. 2000) (adopting a dangerousperson
exception to the Jaffee privilege), with United States v. Glass, 133 F.3d 1356
(10th Cir. 1998) (declining to adopt a dangerous-person exception to the Jaffee privilege).
Parts IV and V discuss Jaffee’s impact on third-party tort liability.
45. See cases cited supra note 39. While the exceptions seemingly conflict with
the Jaffee Court’s caution against case-by-case judicially fashioned exceptions, they
represent a consistent policy determination that, in an extremely limited range of factual
situations, the dangers of excluding relevant evidence outweigh the value of protecting
the therapist-patient privilege. The established exceptions thus avoid the Jaffee Court’s
concern about leaving the scope of the privilege up to each individual judge’s case-bycase
assessment.

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patient’s psychologist, the patient’s social worker, the patient’s
marriage and family therapist, the patient’s professional
counselor or persons, including members of the patient’s
family, who are participating in the diagnosis or treatment
under the direction of the physician, registered nurse,
chiropractor, psychologist, social worker, marriage and family
therapist or professional counselor. 46
The very terms of the statute impose some limitations on the general
privilege rule. First, the privilege protects only “confidential
communications,” which the statute defines as communications
not intended to be disclosed to [third] persons other than those
present to further the interest of the patient in the consultation,
examination, or interview, or persons reasonably necessary for
the transmission of the communication or information or
persons who are participating in the diagnosis and treatment
under the direction of the [healthcare provider], including the
members of the patient’s family. 47
Thus, otherwise privileged communications disclosed to a person not
participating in a patient’s care may lose their privileged status. Second,
the statute limits its application to a specific group of healthcare
providers, including a wide variety of mental healthcare professionals. 48
The statute also explicitly enumerates a number of exceptions to the
general privilege rule. 49 A patient may also waive the privilege. 50
46. WIS. STAT. § 905.04(2) (2005-2006).
47. Id. § 905.04(1)(b).
48. See id. § 905.04(2).
49. See id. § 905.04(4). These exceptions include communications relevant to a
commitment or guardianship proceeding, communications made in the context of a courtordered
psychological evaluation, communications relevant to a health problem the
patient has put at issue in litigation, communications relating directly to a homicide,
communications regarding an abused child where the invocation of privilege would
conflict with mandatory reporting laws, and communications disclosed to intake workers
in juvenile proceedings. See id.
50. See id. § 905.11 (“A person upon whom this chapter confers a privilege . . .
waives the privilege if the person . . . voluntarily discloses or consents to disclosure of
any significant part of the matter or communication.”).

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2. COMMON-LAW EXCEPTIONS
Since 1993, Wisconsin has recognized a limited exception to the
therapist-patient privilege in criminal cases. 51 Typically, cases trigger
this exception if a victim’s psychological records may cast doubt upon
the defendant’s alleged guilt. 52 The exception seeks to balance the
competing rights and interests at stake in asserting privilege under such
circumstances. 53 On one hand, preventing a defendant from introducing
privileged records at trial “implicates the defendant’s due process
rights”—especially “the right to present a complete defense”; 54 on the
other hand, “the state has an interest in protecting a patient’s privileged
records.” 55 Wisconsin courts have attempted to resolve this conflict by
using in camera review, whereby a trial-court judge may examine the
privileged records and make a ruling as to whether they have any
“independent probative value” and are therefore admissible, privilege
notwithstanding. 56
A defendant is not always entitled to an in camera review of
contested psychological records, however. The defendant must show a
preliminary, good-faith, factual basis “demonstrating a reasonable
likelihood that the records contain relevant information necessary to a
determination of guilt or innocence and is not merely cumulative to other
evidence available to the defendant.” 57 Moreover, the victim must
51. See State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993).
The Shiffra court reasoned by analogy to Rovario v. United States, 353 U.S. 53, 60-61
(1957), in which the U.S. Supreme Court held that, when a government informant’s
identity is relevant to a defendant’s defense, the privilege “must give way.” The Shiffra
standard is consistent with the standards of other states. See, e.g., Goldsmith v. State, 651
A.2d 866 (Md. 1995); People v. Stanaway, 521 N.W.2d 557 (Mich. 1994).
52. See, e.g., State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298
(involving a defendant who, after being accused of sexually assaulting a child, sought
records of the child’s interview with a county social worker); State v. Solberg, 211 Wis.
2d 372, 564 N.W.2d 775 (1997) (involving a defendant who sought a sexual-assault
victim’s inpatient psychiatric records to establish a partial alibi and to impeach the
victim’s credibility); Shiffra, 175 Wis. 2d at 603, 499 N.W.2d at 720 (involving a
defendant who argued that a sexual-assault victim’s psychiatric records would show that
the victim suffered from a disorder which could “affect her ability to perceive and relate
truthful information”).
53. See Shiffra, 175 Wis. 2d at 605 & n.1, 499 N.W.2d at 721 & n.1 (balancing
a criminal defendant’s rights against the state’s interest in protecting its citizens).
54. Green, 2002 WI 68, 23 (citing Shiffra, 175 Wis. 2d at 605, 499 N.W.2d at
721).
55. Id. (citing Shiffra, 175 Wis. 2d at 605, 499 N.W.2d at 721); see also WIS.
STAT. § 905.04(2). Neither the Shiffra nor the Green court considered the underlying
policies advocating for or against the existence of the privilege at length.
56. See Shiffra, 175 Wis. 2d at 611, 499 N.W.2d at 724.
57. Green, 2002 WI 68, 19.

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consent to judicial review of the privileged records. 58 Until Johnson,
however, Wisconsin courts only applied the in camera procedure in
criminal cases, in which the defendant’s due process interests provided a
strong counterpolicy to the compelling policies underlying the
psychotherapist-patient privilege. 59
III. OVERVIEW OF THIRD-PARTY NEGLIGENT-THERAPY CLAIMS
The crux of the Johnson case is not simply its analysis of the
therapist-patient privilege, but also the court’s treatment of the
intersection between the privilege and tort liability of therapists to third
parties. 60 These two doctrines are fundamentally in tension with each
other: for claims brought by parties not in privity with a negligent
therapist to survive summary judgment, the plaintiffs generally must gain
access to records which are ordinarily privileged. 61 Courts have typically
resolved this tension by limiting the scope of either the privilege or thirdparty
tort rights. 62 Which doctrine generally gives way, however, has
changed over the thirty years since the California Supreme Court first
recognized third-party claims against negligent therapists in its seminal
decision in Tarasoff. 63 A brief overview of the history of third-party
negligent-therapy claims is therefore useful in understanding how the
Johnson case both partakes in and departs from that history.
58. See State v. Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775, 781
(1997).
59. See Green, 2002 WI 68, 23.
60. Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, 68, 283 Wis. 2d 384,
700 N.W.2d 27 (discussing the need to balance the privilege and tort doctrines).
61. In Johnson, for instance, the trial court denied Charlotte’s parents access to
her records. Id. 25. But see Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159
(1988) (holding that a party not in privity with therapist could gain access to privileged
records as the executor of a patient’s estate).
62. See, e.g., Johnson, 2005 WI 114, 4 (limiting the scope of the therapistpatient
privilege); United States v. Hayes, 227 F.3d 578 (6th Cir. 2000) (limiting the
reach of third-party tort rights and holding that the Jaffee privilege prevented a
psychotherapist from testifying to a patient’s previously disclosed threats in a subsequent
prosecution).
63. 551 P.2d 334 (Cal. 1976). The 1976 decision was in fact the California
Supreme Court’s second consideration of the case. The court’s first decision can be found
at Tarasoff v. Regents of the Univ. of Cal., 529 P.2d 553 (Cal. 1974); see also Brian
Ginsberg, Tarasoff at Thirty: Victim’s Knowledge Shrinks the Psychotherapist’s Duty to
Warn and Protect, 21 J. CONTEMP. HEALTH L. & POL’Y 1, 1-2 (2004). The second
decision expanded therapists’ liability to third parties and had national repercussions. See
id. For a discussion of the distinctions between the two Tarasoff decisions and a thorough
recitation of the facts, see Fillmore Buckner & Marvin Firestone, “Where the Public
Peril Begins”: 25 Years After Tarasoff, 21 J. LEGAL MED. 187 (2000).

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A. The Origin of Third-Party Claims: Tarasoff v. Regents of the
University of California
In 1969, after receiving counseling from a University of California
psychologist, Prosenjit Poddar killed Tatiana Tarasoff. 64 Tarasoff’s
parents sued Poddar’s mental-healthcare providers on the novel theory
that Poddar had disclosed his intention to kill Tarasoff in therapy, and his
therapists had negligently failed to warn Tarasoff or her parents of the
danger he posed. 65 In concluding that Poddar’s therapists owed Tarasoff
a duty to warn, the California Supreme Court considered the standard
policy arguments for and against imposing a duty of care, including
the foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct,
the policy of preventing future harm, the extent of the burden
to the defendant and consequences to the community of
imposing . . . liability . . . , and the availability . . . of insurance
for the risk involved. 66
The court also gave lengthy consideration to the issue of
confidentiality. 67 While the court acknowledged the “public interest in
supporting effective treatment of mental illness and in protecting the
rights of patients to privacy” underlying the psychotherapist-patient
privilege, 68 it held that the public interest in safety against violent assault
outweighed the policies supporting the privilege. 69 In balancing the
public-interest considerations, the court relied heavily on a law review
article written specifically in response to an earlier phase of the Tarasoff
litigation. 70 According to the court, the authors, Professor John G.
64. Tarasoff, 551 P.2d at 339.
65. See id. at 339-40.
66. Id. at 342. The court placed special emphasis on the importance of
foreseeability, see id., and cautioned that “the therapist need only exercise that
‘reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by
members of [that professional specialty] under similar circumstances.’” Id. at 345
(quoting Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970)).
67. See id. at 346-49. The defendants and numerous amici, including the
American Psychiatric Association, made the argument for confidentiality. Id. at 344.
68. Id. at 346.
69. See id. at 346-47.
70. See id. at 346 n.12 (citing John G. Fleming & Bruce Maximov, The Patient
or His Victim: The Therapist’s Dilemma, 62 CAL. L. REV. 1025 (1974). For a critique of

2006:1683 Untangling Charlotte’s Web 1695
Fleming and Bruce Maximov, dismissed as “speculative” the defendants’
and amici’s contentions that imposing a duty might dissuade violenceprone
persons from seeking psychological treatment. 71 After considering
the policies at stake, the court ultimately concluded that the policies in
favor of imposing liability were stronger than those weighing against it. 72
Through the 1970s and early 1980s, courts across the country
quickly adopted Tarasoff liability, 73 despite strong resistance from the
medical community. 74 Courts expanded a psychotherapist’s duty to warn
to include threats made by patients toward unidentifiable third parties, 75
threats made during a therapeutic relationship arising from a cursory
psychiatric examination in an emergency room, 76 and threats to damage
a third party’s property. 77 This trajectory began to reverse itself,
however, during the late 1980s and the 1990s, as courts started to limit
the reach of Tarasoff liability according to what the victim knew or
should have known. 78 For instance, a Michigan court declined to find
that a therapist negligently failed to warn a victim, whom the patient had
previously attempted to assault, because the victim was already well
aware of the dangers posed by the patient. 79 A New York court declined
to hold a therapist liable for a patient’s shooting of her husband because
the couple had sought therapy precisely to confront the wife’s violent
behavior toward the husband. 80 More recently, the Fourth Circuit
declined to impose liability on a therapist whose patient was referred to
Fleming and Maximov’s assumptions regarding confidentiality, see Buckner & Firestone,
supra note 63.
71. See Tarasoff, 551 P.2d at 346 n.12.
72. See id. at 353.
73. See Buckner & Firestone, supra note 63, at 1.
74. See Ginsberg, supra note 63, at 1.
75. See Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb. 1980). The
Lipari court distinguished between “identifiable” and “foreseeable” victims, and
concluded that a liable therapist need not know precisely whom a patient might endanger
so long as the therapist knew that patient might endanger someone. Id. at 194.
76. See Jablonski v. United States, 712 F.2d 391 (9th Cir. 1983).
77. See Peck v. Counseling Serv. of Addison County, Inc., 499 A.2d 422 (Vt.
1985). In Peck, the patient told his therapist that he intended to burn down a third party’s
barn. Without much discussion, the court elided the distinction between harm to property
and physical harm to the third party, and concluded that the therapist had a duty to warn.
Id. at 426-27.
78. Ginsberg, supra note 63, at 19.
79. See Hinkelman v. Borgess Med. Ctr., 403 N.W.2d 547 (Mich. Ct. App.
1987).
80. See Wagshall v. Wagshall, 538 N.Y.S.2d 597 (N.Y. App. Div. 1989).

1696 WISCONSIN LAW REVIEW
psychological counseling because his wife reported that he had made
violent threats toward her. 81
Recent cases reevaluating Tarasoff ‘s legacy have been strikingly
divergent, and there is little national consensus. Wisconsin has permitted
therapists to disclose otherwise privileged therapeutic communications
when the therapist “had ‘reasonable cause . . . to believe’ his patient was
dangerous” 82 toward society generally, even though the patient had made
threats to only a small group of people. 83 In contrast, the Sixth Circuit
has limited Tarasoff ‘s application in light of the Supreme Court’s
affirmation of the psychotherapist-patient privilege in Jaffee. 84 In
California, which has arguably had the most extensive experience with
Tarasoff liability, the state legislature enacted a statute attempting to
circumvent judicial expansion of a therapist’s duties to third parties. 85
The statute expressly limits third-party liability to circumstances in
which “the patient has communicated to the pyschotherapist a serious
threat of physical violence against a reasonably identifiable victim or
victims.” 86 Thus far, California courts have held that the new statute
strikes a reasonable policy balance and have upheld its application. 87
The extent to which Tarasoff places a limit upon the reach of the
therapist-patient privilege, therefore, has diminished over time.
B. Post-Tarasoff Developments: Expanding Third-Party Malpractice
Claims Beyond Threats of Violence Made by Patients Toward Third
Parties
In the wake of Tarasoff, some courts have sanctioned other types of
third-party claims against therapists. Some common third-party
malpractice claims against therapists include suits against a spouse’s
therapist, alleging sexual contact with the patient; custody disputes in
81. See Dunk v. United States, No. 95-1149, 1996 U.S. App. LEXIS 1171 (4th
Cir. Jan. 30, 1996).
82. State v. Agacki, 226 Wis. 2d 349, 363, 595 N.W.2d 31, 38 (Ct. App. 1999)
(quoting Menendez v. Superior Court, 834 P.2d 786, 794 (Cal. 1992)).
83. See id. at 351, 595 N.W.2d at 33.
84. See United States v. Hayes, 227 F.3d 578 (6th Cir. 2000) (holding that the
Jaffee privilege prevented a psychotherapist from testifying to a patient’s previously
disclosed threats in a subsequent prosecution).
85. See CAL. CIV. CODE § 43.92 (West Supp. 2006). The legislature intended
that the statute “limit psychotherapists’ liability for failure to warn” and “abolish the
expansive rulings of [the California Supreme Court]” in Tarasoff and its progeny.
Calderon v. Glick, 31 Cal. Rptr. 3d 707, 711 (Ct. App. 2005).
86. Calderon, 31 Cal. Rptr. 3d at 711.
87. See, e.g., id. at 233-34 (holding that, in the absence of concrete threats made
by the patient, the psychotherapist had no statutory duty to warn the plaintiffs).

2006:1683 Untangling Charlotte’s Web 1697
which a therapist testifies that one parent has sexually abused a child;
and civil suits against therapists who testified in criminal proceedings
involving allegations of sexual abuse. 88 Tarasoff liability has also been
expanded beyond the sphere of therapist-patient communications to
encompass other kinds of failure to warn, particularly a healthcare
provider’s duty to protect the public from a patient who presents a danger
while driving a motor vehicle 89 and from a patient who may transmit an
infectious disease. 90 Johnson-style claims, however, extend the scope of
Tarasoff liability far beyond the failure to warn and create a new duty
owed by therapists to individuals who experience emotional distress or
damage to reputation due to a patient’s actions. 91 As critics have
observed, neither Tarasoff nor these other types of third-party
malpractice claims provide compelling precedent for a therapist’s duty
toward a patient’s alleged abuser. 92
Wisconsin courts first took up the issue of a therapist’s third-party
malpractice liability in 1988. 93 In Schuster v. Altenberg, the Wisconsin
Supreme Court addressed the question of whether the spouse and the
paralyzed daughter of a psychiatric patient who was killed in an
automobile accident could bring a malpractice claim against the patient’s
psychiatrist. 94 The plaintiffs argued that a proper diagnosis would have
warned the family not to allow her to drive until correction of her
condition. 95 The court held that the plaintiffs stated a claim sufficient to
survive summary judgment, explicitly rejecting the “readily identifiable
victim” doctrine of Tarasoff 96 and placing Wisconsin in the vanguard of
Tarasoff expansionism. Consistent with Tarasoff ’s view of the therapistpatient
privilege, the Schuster court concluded that the privilege “must
88. Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal
Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. REV. 549, 577 (1996).
89. See, e.g., Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988);
see also infra notes 106-09 and accompanying text (discussing Schuster ).
90. See Buckner & Firestone, supra note 63, at 210-13.
91. See Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, 4, 283 Wis. 2d
384, 700 N.W.2d 27.
92. See, e.g., Bowman & Mertz, supra note 88, at 577.
93. See Schuster, 144 Wis. 2d at 230, 424 N.W.2d at 162-63.
94. See id. at 227, 424 N.W.2d at 161.
95. Id. at 233-34, 424 N.W.2d at 163-64.
96. See id. at 234, 424 N.W.2d at 164. While the court conceded that therapists
could not be omniscient in foreseeing harm, it believed that limiting liability to those
cases in which expert testimony established that the therapist had failed to conform to the
accepted standard of care would sufficiently curtail the therapist’s duty to the public at
large rather than to only readily identifiable victims. See id. at 238, 424 N.W.2d at 165.

1698 WISCONSIN LAW REVIEW
yield in those limited circumstances where the public interest in safety
from violent assault is threatened.” 97
In Sawyer v. Midelfort, its first decision addressing professional
liability for therapists treating patients who accused a parent of sexual
abuse, the Wisconsin Supreme Court expanded its holding in Schuster
even further. 98 The court began its analysis by reviewing Schuster ‘s
recognition of third-party claims against therapists for damages sustained
as the result of negligent diagnosis and treatment. 99 It reasoned that the
factual distinctions between Schuster and Sawyer did not merit rejection
of the Sawyers’ cause of action. 100 Because of a peculiar factual twist,
however, the court did not reach the issue of confidentiality. 101 The
patient, the Sawyers’ daughter, died of cancer several years before the
lawsuit began. 102 Dolores Sawyer obtained an order appointing her
special administrator of the patient’s estate, allowing her to gain access
to her daughter’s medical records. 103 The defendants in Sawyer argued
that privilege would operate to the detriment of future defendants in this
area and therefore that the court should not permit such claims. 104 The
court, however, dismissed their argument, instead simply observing that,
while “problems of confidentiality [might] preclude liability from being
imposed in a future case,” in this case they did not. 105
In a concurrence, Justice Jon Wilcox argued that the majority had
too abruptly dismissed the importance of the therapist-patient privilege,
both as defined by Wisconsin statute and as recognized by the U.S.
Supreme Court. 106 Justice Ann Walsh Bradley dissented for similar
reasons, stating that while “[t]he majority avow[ed] to so narrowly tailor
the claim that it carve[d] a niche out of the law that is only large enough
97. Id. at 249, 424 N.W.2d at 170.
98. 227 Wis. 2d 124, 595 N.W.2d 423 (1999).
99. See id. at 140, 595 N.W.2d at 431.
100. See id. at 141, 151, 595 N.W.2d at 432, 436.
101. See id. at 150, 595 N.W.2d at 436.
102. Id. at 132, 595 N.W.2d at 428.
103. Id.
104. See id. at 150, 595 N.W.2d at 436. The court acknowledged the defendants’
argument that recognition of the Sawyers’ claim would
unduly burden the therapist and his or her patient because such claims place
confidentiality between the patient and the therapist at substantial risk.
Because the patient holds the privilege of confidentiality, the defendants in
third-party actions may not be able to successfully defend themselves, for
they will not be able to breach their duty of confidentiality to their patients.
Id.
105. Id.
106. See id. at 163-64, 595 N.W.2d at 442 (Wilcox, J., concurring) (citing WIS.
STAT. § 905.04(2) (1997-1998) and Jaffee v. Redmond, 518 U.S. 1 (1996)).

2006:1683 Untangling Charlotte’s Web 1699
to include the unique set of facts from the case at hand,” it instead
“craft[ed] a claim that is without limitation to relationship and cannot be
narrowed to just accusations of sexual abuse.” 107 For Justice Bradley, the
wide scope of the claim recognized by the majority opened the door to
claims against therapists brought by third parties ranging from any
relative of the patient to a “criminal defendant charged with sexually
assaulting the patient” to the patient’s “abusive former boyfriend.” 108
This, she argued, exceeded the reasonable reach of third-party negligent
therapy claims. 109
Unsurprisingly, in 2001, the Wisconsin Supreme Court accepted
review of Johnson, a case intended to test the extent to which privilege
would bar litigation of third-party negligent-therapy claims after Sawyer.
Charlotte Johnson’s parents sued their daughter’s therapists in 1996,
alleging that they had led Charlotte to “recover” false memories of
childhood sexual abuse. 110 The first time the court of appeals heard the
case, it held that Charlotte Johnson’s parents could not prove their claim
without impermissibly infringing upon the confidential therapist-patient
relationship. 111 The Wisconsin Supreme Court reversed, however,
holding that the factual record lacked sufficient development for the
court to resort to public policy. 112 The court therefore deferred its
consideration of privilege until Johnson came before it a second time.
IV. DISCUSSION OF JOHNSON V. ROGERS MEMORIAL HOSPITAL
In its 2005 Johnson decision, the Wisconsin Supreme Court
fashioned a new public-policy exception to the therapist-patient privilege
applicable in cases in which negligent therapy triggers false accusations
of child abuse against the patient’s parents. 113 The court achieved only a
plurality in support of its lead opinion, however, 114 calling into serious
question the impact of Johnson on state law. Because the Johnson court’s
107. Id. at 166, 595 N.W.2d at 443 (Bradley, J., dissenting).
108. Id. at 165-66. Justice Bradley’s dissent presciently foreshadowed the
dilemma in Johnson—whether a relative could access a patient’s medical records in a
case in which the patient was alive and vigorously asserting the therapist-patient
privilege.
109. Id. at 166.
110. Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, 1, 283 Wis. 2d 384,
700 N.W.2d 27.
111. See Johnson v. Rogers Mem’l Hosp., Inc., 2000 WI App 166, 18, 238
Wis. 2d 227, 616 N.W.2d 903.
112. Johnson v. Rogers Mem’l Hosp., Inc., 2001 WI 68, 22, 244 Wis. 2d 364,
627 N.W.2d 890.
113. Johnson, 2005 WI 114, 4.
114. See id. 4 n.3.

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reasoning is flawed and the court itself was fractured, the dissent’s
caution, together with the weak precedent set by the plurality opinion,
offers Wisconsin courts a chance to disavow the bad law created by
Johnson.
A. Introduction to the Johnson Litigation
The Johnson litigation has, thus far, extended over the better part of
a decade. A brief history of the case is therefore necessary for an
understanding of the issues explored by the Wisconsin Supreme Court in
its 2005 decision, the holding reached by the plurality opinion, and the
trenchant critique offered by the dissent.
After the Johnsons filed their original claim in 1996, the Dane
County Circuit Court dismissed their complaint for failure to state a
claim upon which relief could be granted. 115 The Johnsons appealed, and
while the appeal was pending, the Wisconsin Supreme Court rendered its
decision in Sawyer. 116 Despite Sawyer ’s recognition of third-party
negligent-therapy claims, the Wisconsin Court of Appeals affirmed the
ruling of the trial court, holding that “the Johnsons could not prove their
claim, nor could the therapists defend against it, without imposing
significant burdens on the confidential therapist-patient relationship.” 117
The court of appeals reasoned that the important public policy underlying
the therapist-patient privilege outweighed the Johnsons’ tort rights. 118
In its first review of the Johnson litigation, the Wisconsin Supreme
Court reversed the court of appeals decision, concluding that it could not
invoke public policy before determining whether confidentiality would,
in fact, be threatened. 119 The court noted that the record was specifically
ambiguous on the crucial issues of whether the privilege operated as a
bar to discovery and whether Charlotte had waived her privilege. 120 The
court, therefore, remanded the case for further development of the
record. 121
On remand, the defendants moved for summary judgment, arguing
that the Johnsons could not prove their claim without invading
115. Johnson, 2001 WI 68, 10.
116. Id. 11. Sawyer recognized third-party negligent-therapy claims brought by
parents alleging that a therapist had negligently implanted false memories of sexual abuse
in their child. Sawyer v. Midelfort, 227 Wis. 2d 124, 135, 595 N.W.2d 423, 429 (1999).
This Note will refer to such claims as Sawyer claims.
117. Johnson, 2005 WI 114, 11.
118. See id.
119. See Johnson, 2001 WI 68, 22.
120. See id. 18.
121. See id. 22.

2006:1683 Untangling Charlotte’s Web 1701
Charlotte’s privilege and that public policy demanded that the privilege
be protected. 122 In response, the Johnsons moved to compel access to
Charlotte’s medical records, maintaining that the court should craft a
public-policy exception to the therapist-patient privilege in third-party
negligent-therapy cases. 123 The circuit court denied the Johnsons’ motion
to compel, declined to create a new public-policy exception to the
therapist-patient privilege, and granted the defendants’ summaryjudgment
motions. 124
The Johnsons again appealed, and the court of appeals certified the
case to the supreme court to resolve the question of whether there ought
to be a public-policy exception to the therapist-patient privilege when an
adult child accuses her parents of physical and sexual abuse based on
memories recovered during therapy and the parents sue the child’s
therapist under a Sawyer claim. 125
A deeply splintered supreme court held by a plurality that Charlotte
did not waive her therapist-patient privilege. 126 Nonetheless, the court
found that there is a public-policy exception to the privilege “when
negligent therapy causes false child-abuse accusations against the
patient’s parents.” 127 The plurality modeled its public-policy exception
and procedure after a similar criminal-law exception refined in State v.
Green 128 : To be eligible for the exception, a plaintiff “must first
commence a reasonable investigation into the type of therapy the
plaintiff’s child underwent.” 129 The plaintiff must next “set forth a goodfaith,
fact-specific basis demonstrating a reasonable likelihood that the
records contain information regarding negligent treatment.” 130 If the
plaintiff makes those preliminary showings, the court may proceed to
perform an in camera review of the records, even if the patient refuses to
consent to the review. 131 If the trial court agrees that the records contain
information relevant to the negligent treatment, it must disclose those
122. Johnson, 2005 WI 114, 24.
123. Id. 25. The Johnsons argued in the alternative that Charlotte had waived
her privilege by signing a limited release of her records to her parents, providing her
parents with medical bills relating to her treatment, confronting her parents with her
memories during her therapy sessions, discussing her therapy with a high-school friend,
filing a restraining order against her parents, and contemplating a civil suit against her
parents for damages caused by their alleged abuse. Id.
124. Id. 26.
125. Id. 29.
126. See id. 3 n.1.
127. Id.
128. 2001 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.
129. See Johnson, 2005 WI 114, 72-74.
130. Id.
131. See id. 75.

1702 WISCONSIN LAW REVIEW
records to the plaintiff. 132 The court thus held, in essence, that the
Johnsons’ tort rights outweighed Charlotte’s right to confidentiality. 133
Virtually every member of the court joined a separate opinion to
voice his or her concerns with aspects of the plurality opinion. Justice
David Prosser Jr., joined by Justices Wilcox and N. Patrick Crooks,
concurred, arguing that Charlotte had waived her privilege and that the
plurality opinion had construed the privilege too broadly. 134 Justice
Wilcox, concurring and dissenting, disagreed with the lead opinion’s in
camera review procedure but noted that—because he believed that
Charlotte had waived her privilege—the Johnsons were entitled to her
medical records in any case. 135 Finally, Justice Bradley and Chief Justice
Shirley Abrahamson concurred in part and dissented in part, arguing that
the lead opinion construed the privilege too narrowly by giving it
insufficient weight and protection and broadly dismissing the important
policy behind patient consent. 136 Justice Bradley expressed particular
concern with the plurality’s novel standard for in camera review derived
from criminal procedure. 137 She cautioned that the plurality’s elimination
of the consent requirement paradoxically devalued the privilege in the
tort context while affording it greater protection in the criminal context,
in which the privilege conflicts not with a party’s mere monetary
interests but with a defendant’s more crucial liberty interests. 138
132. Id. 76.
133. See id. 165 (Bradley, J., dissenting).
134. See id. 81 (Prosser, J., concurring).
135. See id. 148-49 (Wilcox, J., concurring in part, dissenting in part).
136. See id. 150-79 (Bradley, J., dissenting).
137. See id. 173-75.
138. Id.

2006:1683 Untangling Charlotte’s Web 1703
B. The Plurality’s Analysis
The plurality’s holding 139 carves out a new public-policy exception
to the therapist-patient privilege under Sawyer, thus permitting the
Johnsons’ claim to proceed. 140 The plurality began its analysis by
assessing, and rejecting, the Johnsons’ argument that Charlotte had
waived her privilege. 141 The court was unpersuaded by the Johnsons’
claim that Charlotte had waived her privilege by authorizing disclosure
of certain limited medical records, in part because the hospital had
erroneously disclosed Charlotte’s psychiatric records to the Johnsons,
and in part because even the records that the hospital did disclose did not
“constitute a voluntary disclosure of ‘any significant part of the matter or
communication.’” 142
Similarly, the court rejected the Johnsons’ argument that Charlotte
had waived her privilege because she gave her parents her medical
bills. 143 The court reasoned that—because the bills simply identified who
performed the therapy and on which date, but did not contain the
substance of any privileged communications—the medical bills were
insufficient to constitute waiver. 144 The court likewise rejected the
contention that, by inviting her parents to a therapy session, Charlotte
had waived her privilege: it observed that Wisconsin Statutes section
905.04(1)(b) protects communications made to “persons who are
participating in the diagnosis and treatment under the direction of the . . .
psychologist . . . or professional counselor, including the members of the
patient’s family.” 145 The court also declined to find that Charlotte had
waived her privilege by telling a high-school friend that she was “seeing
139. Because the court’s failure to achieve a true majority on any of its
substantive holdings (as opposed to a majority consensus on outcome) limits the impact
of the plurality’s ruling, a road map may be useful. The plurality held (1) that Charlotte
did not waive her privilege (Chief Justice Abrahamson and Justices Butler and Bradley);
(2) that Charlotte’s communications with an unlicensed therapist were privileged (all
participating justices); (3) that there is a public-policy exception to the therapist-patient
privilege (Justices Crooks, Prosser, and Butler); and (4) that in camera review is
applicable in such cases (Justices Crooks, Prosser, and Butler). See id. 3-4 & nn.1-4.
The seventh member of the court, Justice Roggensack, recused herself because, during
her tenure on the Wisconsin Court of Appeals, she authored its 2000 decision concluding
that the public policy underlying the therapist-patient privilege barred the Johnsons’
claim from going forward. See id. 79; Johnson v. Rogers Mem’l Hosp., Inc., 2000 WI
App 166, 238 Wis. 2d 227, 616 N.W.2d 903.
140. See Johnson, 2005 WI 114, 4.
141. See id. 37.
142. See id. 40-42 (quoting WIS. STAT. § 905.11 (2003-2004)).
143. See id. 43.
144. Id.
145. See id. 44-45 (quoting WIS. STAT. § 905.04(1)(b) (2003-2004)).

1704 WISCONSIN LAW REVIEW
a therapist” and “being hypnotized,” holding instead that the
conversation could not “reasonably be considered a voluntary disclosure
of any significant part of a matter or communication.” 146
The court next rejected the argument that, by filing a restraining
order against her parents, Charlotte had put her psychological condition
at issue and had therefore forfeited the privilege. 147 The court noted that
separate statutes codified the doctrine of waiver and the rule of evidence
providing that, when a patient puts a medical condition at issue, privilege
does not bar discovery of medical records. 148 Moreover, the rules of
evidence explicitly provide that “there is no privilege” under such
circumstances, rather than considering the patient to have waived the
privilege. 149
Finally, the court disagreed with the contention that Charlotte’s
communications with her attorney regarding a potential civil action
against the Johnsons constituted a waiver of her privilege. 150 Because
Charlotte’s communications with her attorney were themselves
privileged 151 and her attorney could not waive that privilege without
Charlotte’s consent, 152 any statements Charlotte made to her attorney
regarding her medical treatment remained privileged. 153 As a second-tier
challenge to Charlotte’s privilege, the Johnsons contended that no
privilege barred discovery of communications made to one of Charlotte’s
medical providers, Kay Phillips, who was not a licensed professional
therapist at the time she treated Charlotte. 154 The plurality rejected the
Johnsons’ argument for two reasons: First, the court concluded that
Charlotte reasonably believed her communications with Phillips were
146. Id. 46.
147. See id. 47-48. Wisconsin Statutes section 905.04(4)(c) provided that
[t]here is no privilege under this section as to communications relevant to or
within the scope of discovery examination of an issue of the physical, mental
or emotional condition of a patient in any proceedings in which the patient
relies upon the condition as an element of the patient’s claim or defense.
148. See Johnson, 2005 WI 114, 48.
149. Id. (quoting WIS. STAT. § 905.04(4)(c)).
150. Id. 51.
151. See id. 52 (citing WIS. STAT. § 905.03(2) (attorney-client privilege) and
id. § 905.11 (providing that there is no waiver when subsequent communications are
themselves privileged)).
152. Id. (citing Harold Sampson Children’s Trust v. Linda Gale Sampson 1979
Trust, 2004 WI 57, 46, 271 Wis. 2d 610, 679 N.W.2d 794 (“[O]nly the client can waive
the attorney-client privilege under [section] 905.11.”)).
153. See id.
154. Id. 53.

2006:1683 Untangling Charlotte’s Web 1705
confidential. 155 Second, the communications were privileged because
Phillips was working under the direction of a physician. 156
Lastly, the plurality turned to the Johnsons’ most creative
argument—that the court should craft a public-policy exception to the
therapist-patient privilege in third-party negligent-therapy claims brought
under Sawyer and its progeny. 157 The court had previously hinted that it
might be receptive to such an argument, 158 and in this case the plurality
accepted the Johnsons’ invitation. 159
Three members of the court—only half of the justices on the
panel—were able to reach the consensus that “public policy requires that
the therapist-patient confidentiality and privilege give way to Sawyer
third-party negligence claims, but only in limited circumstances.” 160 The
court began its analysis of the privilege by emphasizing that it was to be
construed narrowly in order to “coexist in a judicial system seeking to
find the truth, serve the interests of justice, and have all relevant
information available for consideration by the fact-finder.” 161
By defining the privilege as being fundamentally opposed to the
business of truth-seeking, the plurality was able to weaken the import of
Jaffee ’s strong affirmation of the privilege. In Jaffee, the plurality
argued, the Supreme Court did not limit its “evisceration” of the
privilege because its rationale applied only in cases in which the
privilege promoted the desired end of “successful treatment.” 162 Thus,
the plurality reasoned:
When the end [of “successful treatment”] is divorced from the
means . . . such that “negligent therapy” is left to flourish
155. Id. 54-55 (relying on State v. Locke, 177 Wis. 2d 590, 604, 502 N.W.2d
891, 897 (Ct. App. 1993) (“The patient’s objectively reasonable perceptions and
expectations of the medical provider are the proper gauge of the scope of the [therapistpatient]
privilege.”)).
156. See id. 56-57; see also WIS. STAT. § 905.04(2) (2005-2006) (extending
the privilege to communications between the patient and any individuals participating in
the diagnosis or treatment of the patient under the direction of a physician).
157. See 2005 WI 114, 58.
158. See Johnson v. Rogers Mem’l Hosp., Inc., 2001 WI 68, 16-19, 244 Wis.
2d 364, 627 N.W.2d 890 (overturning the court of appeals’ conclusion that the public
policy underlying the therapist-patient privilege barred the Johnsons’ claim from going
forward on the grounds that the issue was not yet ripe).
159. See Johnson, 2005 WI 114, 58.
160. Id.
161. Id. 59 (quoting Crawford v. Care Concepts, Inc., 2001 WI 45, 15, 243
Wis. 2d 119, 625 N.W.2d 876). But see Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (“The
mental health of our citizenry, [which the psychotherapist-patient privilege protects,] no
less than its physical health, is a public good of transcendent importance.”).
162. See 2005 WI 114, 62 (quoting Jaffee, 518 U.S. at 10).

1706 WISCONSIN LAW REVIEW
within the confines of the therapist-patient relationship, the
privilege no longer serves its purpose. What was meant to be a
device to help care for problems becomes a shelter to protect
careless and negligent practices. The privilege cannot be
distorted in this manner. 163
In other words, the court inverted the policy argument endorsed by the
Supreme Court in Jaffee. 164 Because the Jaffee privilege acts to promote
the “atmosphere of confidence and trust” upon which “effective
psychotherapy” depends, 165 the plurality concluded that the converse was
true: the privilege, by this logic, does not protect ineffective therapy. 166
The court went on to describe the costs, in its view, of permitting
negligent therapy to “flourish”: “the therapist is allowed to continue
negligently ‘treating’ others, the patient remains disillusioned by the
falsehoods, and the accused suffers the torment of being branded a childabuser.”
167 In light of these exorbitant costs and because the privilege as
applied in this case did not promote the desired end of “successful
treatment,” the court concluded that the “mechanical application of the
therapist-patient privilege to allow such results to continue unimpeded ill
serves the public.” 168
163. Id.
164. See Jaffee, 518 U.S. at 10.
165. Id.
166. See Johnson, 2005 WI 114, 62-63. Of course, it is impossible for a court
or a third party to know whether a particular therapist practices “effective” therapy
without intruding upon the privileged relationship.
167. Id. 63. It is worth noting that, because this case came to the supreme court
as an appeal from the trial court’s decision to grant summary judgment in favor of the
therapists, the standard of review may have largely driven its decision. See Grams v.
Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473, 477 (1980) (“The inferences to be drawn
from the underlying facts contained in the moving party’s material should be viewed in
the light most favorable to the party opposing the motion.”). The court was thus
compelled to view the record in the light most favorable to the Johnsons. Regardless of
its reasons for doing so, however, the plurality seemed to be persuaded of the veracity of
the Johnsons’ claim that Charlotte was the victim of predatory therapists and required her
parents’ intervention to protect her best interests. See Johnson, 2005 WI 114, 75 (“[A]s
the result of the negligent therapy Charlotte understandably wants nothing to do with her
parents.”). The court also rejected the defendants’ argument that it would be
“paternalistic” for the court to tell people what kinds of treatment they may seek for their
mental-health problems, on the grounds that (1) “the allegation in this case is that
Charlotte is the unsuspecting victim of falsely implanted, and reinforced, memories of
particularly horrifying acts”; and (2) if true, “the therapy precluded Charlotte from
rationally determining whether the therapy was beneficial.” Id. 63 n.9. For a discussion
of this implied “best interests” standard, see infra notes 176-79 and accompanying text.
168. Johnson, 2005 WI 114, 63.

2006:1683 Untangling Charlotte’s Web 1707
Having concluded that the policy behind the privilege would not be
served by its application in the Johnsons’ case, the court turned to a
review of its prior case law in this area. 169 The court reaffirmed its earlier
recognition of the seriousness of false accusations of sexual abuse and
the high degree of culpability attached to negligent therapy that
encouraged such accusations. 170 That culpability, the plurality reasoned,
weighed in favor of an exception to the therapist-patient privilege in
negligent-therapy cases. 171 Similarly, the plurality concluded that its
rationale in Schuster constituted powerful precedent for an exception to
the privilege in Sawyer claims. 172 In Schuster, the court rejected a
therapist’s argument that the public policy underlying the therapistpatient
privilege precluded the court from imposing liability in thirdparty
negligent-therapy claims. 173 Instead, the Schuster court held that
the privilege “must yield in those limited circumstances where the public
interest in safety from violent assault is threatened.” 174 While the
Johnson plurality acknowledged that the Johnsons had suffered no
physical harm, it reasoned that the “grievous harm associated with being
falsely labeled a child abuser” was sufficient to trigger an exception to
the privilege. 175
The plurality also bolstered its argument by analogizing to the
statutory exceptions to privilege contained in Wisconsin’s rules of
evidence. 176 Following the Schuster court, the plurality observed that “at
the very least, the statutory exception to the evidentiary privilege
suggests a balance struck by the legislature between patient
confidentiality and public safety.” 177 From this statutory interpretation,
the court extracted the more general principle that “the privilege is not
sacrosanct and can properly be waived in the interest of public policy
under appropriate circumstances.” 178
169. See id. 64.
170. See id. 64-65 (discussing Sawyer v. Midelfort, 227 Wis. 2d 124, 144,
595 N.W.2d 423, 433 (1999)); see also supra notes 104-12 and accompanying text.
171. Johnson, 2005 WI 114, 65.
172. See id. 66 (discussing Schuster v. Altenberg, 144 Wis. 2d 223, 424
N.W.2d 159 (1988)); see also supra notes 100-03 and accompanying text.
173. See Schuster, 144 Wis. 2d at 249, 424 N.W.2d at 170. The Schuster
negligent-therapy claim involved a therapist’s failure to warn a patient’s family that the
patient’s psychosis might interfere with her ability to drive safely. See id. at 226-27, 424
N.W.2d at 160-61.
174. Id. at 249, 424 N.W.2d at 170.
175. See Johnson, 2005 WI 114, 69.
176. See id. 68-70.
177. Id. 68 (quoting Schuster, 144 Wis. 2d at 251, 424 N.W.2d at 170).
178. Id. 70 (quoting Schuster, 144 Wis. 2d at 251, 424 N.W.2d at 171)

1708 WISCONSIN LAW REVIEW
The circumstances of the Johnson case, the plurality concluded,
were precisely the “appropriate circumstances” under which the privilege
might be waived. 179 Tellingly, the court found significant support in the
statutory exception to privilege when child abuse is suspected. 180 This
exception, argued the plurality, “suggest[s] a balance struck between
confidentiality and investigating and determining whether child abuse
has actually occurred.” 181 The plurality found this parallel persuasive
despite the fact that Charlotte was an adult at the time of her therapy, 182
and the fact that the statutory exception to privilege acts to protect
children from the risk of ongoing or imminent abuse by encouraging
healthcare providers to report instances of suspected abuse. 183
Finally, the court turned to the problem of how to protect the
therapist-patient relationship while simultaneously allowing parties like
the Johnsons access to the medical records they required to pursue their
tort claim. 184 The plurality attempted to resolve this tension by adopting
and modifying a procedure for in camera review previously used only in
the criminal context. 185
The court’s new civil procedure for in camera review consists of
three steps. First, the plaintiff must “commence a reasonable
investigation into the type of therapy the plaintiff’s child underwent
before moving for an in camera review.” 186 This investigation must
include an exploration of whether the child has waived privilege or
would be willing to disclose the records. 187 Second, the plaintiff must set
forth a “good faith fact-specific basis demonstrating a reasonable
likelihood that the records contain information regarding negligent
179. See id. 71.
180. See id. 70 (citing WIS. STAT. § 905.04(4)(e) (2003-2004) (providing that
the privilege does not govern disclosure of communications regarding an abused child
when the invocation of privilege would conflict with mandatory reporting laws)).
181. Id.
182. See id.
183. See, e.g., In re Joy P., 200 Wis. 2d 227, 236 n.4, 546 N.W.2d 494, 498 n.4
(Ct. App. 1996) (stating that the legislature intended for the section 905.04(4)(e)
exception to allow testimony from healthcare providers who suspect that one of their
minor patients has been abused).
184. See Johnson, 2005 WI 114, 71.
185. See id. 71-74. See generally State v. Green, 2002 WI 68, 32-34, 253
Wis. 2d 356, 646 N.W.2d 298; State v. Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d
775, 781 (1997); supra notes 64-72 and accompanying text.
186. Johnson, 2005 WI 114, 74.
187. Id.

2006:1683 Untangling Charlotte’s Web 1709
treatment.” 188 This showing may not be speculative or cumulative, and
should include evidence regarding “features of the negligent therapy.” 189
The plurality critically departed from the criminal procedure for in
camera review when it announced the third prong of the test. 190 In the
criminal context, the trial court proceeds to the in camera review only if
the victim consents to a judicial review of her medical records. 191 In
contrast, the plurality’s new civil standard eliminated this consent
requirement, 192 thus affording patients fewer privacy rights in the civil
context. 193 It also paradoxically grants civil plaintiffs, for whom only
financial remuneration is at stake, greater discovery rights than criminal
defendants, who risk forfeiting their liberty. 194 The plurality reasoned
that this deviation from the criminal standard was necessary because
“requir[ing] Charlotte to give consent to open her medical records makes
little sense considering that as a result of the negligent therapy Charlotte
understandably wants little to do with her parents.” 195 For the plurality,
this intrusion upon Charlotte’s confidentiality rights was warranted by
the fact that the in camera review would “not only allow[] those who
have been wrongfully accused a way to proceed with a Sawyer cause of
action, but also ultimately enables the court to identify negligent
therapists, which can only work to protect future potential victims from
such negligent therapy.” 196
In other words, the plurality discounted Charlotte’s desire to
preserve the confidentiality of her medical records on the theory that
eroding the privilege would be in her best interest and in the best interest
of similarly situated patients. 197 While it is not explicitly identified as
such, the plurality’s concern with what would be best for Charlotte—as
opposed to what Charlotte herself has said she wants—most closely
resembles the “best interests” standard commonly applied in the family-
188. Id.
189. Id.
190. See id. 75.
191. See, e.g., State v. Solberg, 211 Wis. 2d 372, 386-87, 564 N.W.2d 775, 781
(1997) (“If the circuit court determines that the records contain [relevant] information,
that information should be disclosed to the defendant if the patient consents to such
disclosure.”).
192. See Johnson, 2005 WI 114, 75.
193. See id. 175 (Bradley, J., dissenting)
194. Id.
195. Id. 75 (plurality opinion).
196. Id.
197. For an account of the ways in which sexual-assault jurisprudence has
historically infantilized victims, and the ways in which Sawyer claims partake of that
tradition, see Bowman & Mertz, supra note 88, at 633-37 (arguing that because Sawyer
claims exclude the party in privity (the patient) they effectively erase the victim’s voice).

1710 WISCONSIN LAW REVIEW
law arena. 198 This standard generally permits courts to protect and
promote what would be best for a child in the eyes of the court and
considering all the evidence, rather than simply granting a child’s or the
parents’ wishes. 199 As the plurality admited, however, Charlotte was not
a child, 200 and its concern for her best interests, while laudable, was not
the relevant legal standard.
The plurality concluded its analysis by setting forth specific
parameters for the trial court’s disclosure of relevant medical records. If,
after concluding its in camera review, the trial court finds that the
privileged records contain information relevant to the plaintiff’s claim,
the court must provide the plaintiffs with only that information. 201 Any
records deemed not relevant retain their privileged status and may not be
disclosed. 202 The plurality thus remanded the Johnson case for the trial
court to apply the new civil procedure for in camera review. 203
C. Justice Prosser’s Concurrence
Justice Prosser took a strikingly different view of the facts of the
case. To him, Charlotte had repeatedly injured her parents by “level[ing]
allegations of child sexual abuse against her father, Dr. Charles Johnson,
gravely damaging his personal and professional reputations.” 204 She then
added insult to that injury by “ask[ing] the court to acquiesce in her
efforts to shield the psychotherapists who [allegedly] implanted
Charlotte’s memories of abuse.” 205 Justice Prosser argued that not only
would such acquiescence be “contrary to public policy,” 206 but also that
“numerous undisputed facts” of the case supported a conclusion that
Charlotte had waived her privilege. 207
Justice Prosser viewed the waiver issue as two separate questions:
(1) whether Charlotte waived her privilege by permitting some billing
198. See, e.g., WIS. STAT. § 48.01(1) (2005-2006) (“In construing this chapter,
the best interest of the child or unborn child shall always be of paramount
consideration.”); see also Long v. Ardestani, 2001 WI App 46, 41, 241 Wis. 2d 498,
624 N.W.2d 405 (“The best interests of the children is the dominant concern in any
decision in divorce actions affecting custody or physical placement of children.”).
199. See, e.g., ELLMAN ET AL., FAMILY LAW: CASES, TEXTS, PROBLEMS 564-65
(4th ed. 2004) (discussing the best interests doctrine).
200. Johnson, 2005 WI 114, 70.
201. Id. 76.
202. Id.
203. See id. 77.
204. Id. 80 (Prosser, J., concurring).
205. Id.
206. Id.
207. Id. 81.

2006:1683 Untangling Charlotte’s Web 1711
and other medical records to be sent to her father, and (2) whether the
released medical records, along with Charlotte’s other voluntary
disclosures, constituted a “significant part” of the privileged matter and
thus waived the privilege. 208 To better understand the factual context of
the case, Justice Prosser first surveyed the literature relating to
recovered-memory therapy—the type of therapy the Johnsons alleged
Charlotte had undergone. 209 He then turned to the discussion of waiver,
arguing that the lead opinion had incorrectly proceeded to an analysis of
waiver of privilege under chapter 905 of the Wisconsin Statutes without
first considering whether Charlotte had waived her privilege under
section 146.82, 210 which authorizes release of medical records “[t]o the
extent that the records are needed for billing, collection, or payment of
claims.” 211 Justice Prosser concluded that Charlotte had waived the
confidentiality of certain medical records because she had authorized her
healthcare providers to forward billing statements to her father, 212 she
had signed a limited authorization, 213 and she had conceded at a
deposition that it was “possible” that her father had conditioned his
payment of her medical bills on his ability to access her medical
records. 214
Similarly, Justice Prosser rejected the lead opinion’s piecemeal
waiver analysis under chapter 905, 215 instead opting for a “totality of the
circumstances” test that would permit the court to consider all of the
facts relating to waiver together rather than individually. 216 Justice
Prosser argued that, when “viewed collectively,” against the background
of recovered-memory-therapy techniques, a finding of waiver was
208. Id. 85. The Wisconsin waiver statute provides in part that “[a] person
upon whom this chapter confers a privilege against disclosure of the confidential matter
or communication waives the privilege if the person . . . , while holder of the privilege,
voluntarily discloses or consents to disclosure of any significant part of the matter or
communication.” WIS. STAT. § 905.11 (2005-2006).
209. See Johnson, 2005 WI 114, 90-100 (Prosser, J., concurring). The
scientific soundness of recovered-memory therapy, as discussed in Justice Prosser’s
literature survey, is beyond the scope of this Note. More importantly, to the extent that
the psychological community has critiqued recovered-memory therapy as Justice Prosser
suggests, it is important to note that the lead opinion in Johnson does not restrict its
holding to recovered-memory therapy cases. Rather, as Justice Bradley notes, the
plurality “extends Sawyer to general modalities of therapeutic treatment, not just
recovered memory therapy.” Id. 159 (Bradley, J., dissenting); see also infra Part IV.D.
210. See Johnson, 2005 WI 114, 101-03 (Prosser, J., concurring).
211. Id. 102 (quoting WIS. STAT. § 146.82(2)(a)3 (2003-2004)).
212. See id. 103.
213. See id. 104-05.
214. See id. 108-11.
215. See id. 112; see also supra Part IV.A.
216. See 2005 WI 114, 114 (Prosser, J., dissenting).

1712 WISCONSIN LAW REVIEW
“inescapable.” 217 Having concluded that Charlotte had waived her
privilege with regard to any medical records relating to recoveredmemory
therapy, Justice Prosser endorsed the lead opinion’s in camera
review to allow the court to redact any remaining confidential material
from the records. 218
D. Justice Wilcox’s Concurrence and Dissent
Justice Wilcox wrote separately to stake out a middle ground. He
agreed with the dissent that the lead opinion had erred in crafting its in
camera review. 219 He joined with Justice Prosser, however, in concluding
that Charlotte had waived her privilege. 220 Therefore, he provided a
crucial fourth vote for the lead opinion, permitting the Johnsons to go
forward with their claim. 221
E. Justice Bradley’s Dissent
Justice Bradley, joined by Chief Justice Abrahamson, presented a
starkly different view of the case. Under her analysis, the lead opinion
significantly expanded the narrow and fact-specific holding of Sawyer. 222
217. See id. 115, 143-44. Justice Prosser argued that
the grounds for waiver may be summarized as follows: (1) Charlotte
disclosed that she entered therapy due to an eating disorder and alcohol abuse
before ever having a flashback; (2) she underwent psychotherapy; (3) she was
the subject of hypnosis as part of her therapy; (4) she experienced flashbacks
and body memories of childhood abuse; (5) she purchased The Courage to
Heal, the “Bible” of repressed memory therapy; (6) she “confronted” her
parents during therapy sessions; (7) she kept a journal and did artwork
detailing her experiences; (8) she filed a restraining order against her parents
and cut off all contact with them; (9) she changed her name; and (10) she
threatened to file a civil lawsuit against her parents, and as part of that threat,
her attorney referenced repressed memories. Reference to the literature
discussed above reveals that all these events are hallmarks of recovered
memory therapy.
. . . .
. . . Considered together . . . it is difficult, if not impossible, to escape
the conclusion that she voluntarily admitted undergoing recovered memory
therapy.
Id. 143-44.
218. See id. 145.
219. See id. 148 (Wilcox, J., concurring in part, dissenting in part); see also
infra Part IV.D.
220. See 2005 WI 114, 149 (Wilcox, J., concurring in part, dissenting in part).
221. See id.
222. See id. 151-52 (Bradley, J., dissenting).

2006:1683 Untangling Charlotte’s Web 1713
Moreover, she argued that “[t]he rationale proffered by the lead opinion
in carving out an exception to the patient-therapist privilege and right of
confidentiality, and in engrafting criminal procedure to implement the
exception, is supported neither by public policy nor precedent.” 223
Justice Bradley identified four distinct ways in which she believed the
lead opinion had substantially extended the reach of Sawyer while
diminishing the importance of the therapist-patient privilege.
First, the “substantive right to confidentiality of health care records”
was not at issue in Sawyer because of its unusual fact pattern: the
daughter, who might have otherwise asserted privilege, was deceased,
and her parents brought their third-party negligent-therapy claim on
behalf of her estate. 224 In contrast, Charlotte “vigorously fought for
nondisclosure” of her records. 225 Second, the lead opinion expanded
Sawyer ’s holding beyond the scope of its facts to cover cases in which
the therapist patient privilege was invoked. 226 In Sawyer, the parents, on
behalf of their daughter’s estate and as holders of the privilege, had
placed their daughter’s medical condition at issue, therefore negating that
privilege. 227 In Johnson, Charlotte, as holder of the privilege, had
engaged in a decade of litigation in an effort to assert her privilege. 228
The lead opinion expanded Sawyer ‘s holding in a third way by
applying the Sawyer rationale to “general modalities of therapeutic
treatment,” rather than limiting its reach to recovered-memory-therapy
cases only. 229 The Sawyer court explicitly cautioned that third-party
negligent-therapy claims brought by parents accused of sexual abuse
were limited to cases in which the therapists had used recovered-memory
therapy. 230 Justice Bradley observed that the lead opinion, instead of
adhering to Sawyer ‘s limitation, acknowledged that “a key factual
dispute [was] whether Charlotte underwent recovered memory
therapy.” 231 It nonetheless went on to create an exception to the privilege
regardless of the type of therapy Charlotte received, allowing invocation
of the exception in claims featuring any type of alleged negligent
therapy. 232
223. Id. 152.
224. Id. 156; see also supra notes 104-12 and accompanying text.
225. Johnson, 2005 WI 114, 156 (Bradley, J., dissenting).
226. Id. 157.
227. Id. 158.
228. See id. 9 (plurality opinion).
229. See id. 159 (Bradley, J., dissenting).
230. See id. 160.
231. See 2005 WI 114 (Bradley, J., dissenting) (quoting id. 31 (plurality
opinion)).
232. See id.

1714 WISCONSIN LAW REVIEW
Fourth, Justice Bradley argued that the lead opinion expanded
Sawyer claims to include not only sexual abuse, but physical abuse as
well. 233 While the parents in Sawyer had only been accused of sexual
abuse, Charlotte believed her parents had both sexually and physically
abused her. 234 Because the lead opinion significantly expanded Sawyer ’s
holding—in direct contravention of the Sawyer court’s caution that its
decision should be construed narrowly—Justice Bradley concluded that
stare decisis did not compel the holding reached by the plurality. 235
Justice Bradley also took issue with the lead opinion’s in camera
review and its reliance on Schuster and Green as support for that
procedure. Schuster, argued Justice Bradley, was a case squarely within
the Tarasoff tradition. 236 In both Tarasoff and Schuster, the therapistpatient
privilege yielded to serious public-safety concerns; the therapist’s
duty to disclose otherwise privileged communications arose only when
the patient intended to harm another person physically. 237 The Johnsons’
tort action, which represented not physical danger to them but a claim for
financial compensation based on damage to their personal reputations,
could not “be seen as on equal footing with the claims put forward by the
Schusters or the Tarasoffs.” 238 Therefore, Schuster did not support the
plurality’s decision that public policy warranted an exception to the
privilege in Sawyer claims. 239 Similarly, Justice Bradley argued that
Green provided inadequate support for the plurality’s adoption of the in
camera review. Because Charlotte, as holder of the privilege, was the
only person to possess waiver rights, 240 the court’s prior holdings that
consent was required in the criminal context foreclosed the plurality’s
decision to eliminate the consent requirement before proceeding to the in
camera review. 241
Justice Bradley particularly objected to the plurality’s decision to
give the privilege greater weight in criminal cases than in civil cases,
arguing that the plurality “afford[ed] the privilege less protection [than in
the criminal context], though the risk to the Johnsons [was] far less
233. Id. 162.
234. See id. 2 (plurality opinion).
235. See id. 154 (Bradley, J., dissenting).
236. See id. 171. For a discussion of Schuster, see supra notes 100-03 and
accompanying text. For a discussion of Tarasoff, see supra Part III.A.
237. See Johnson, 2005 WI 114, 170-71 (Bradley, J., dissenting); see also
Schuster v. Altenberg, 144 Wis. 2d 223, 252, 424 N.W.2d 159, 171 (1988); Tarasoff v.
Regents of the Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976).
238. Johnson, 2005 WI 114, 172 (Bradley, J., dissenting).
239. See id. 169.
240. Id. 175.
241. See id. 174-75.

2006:1683 Untangling Charlotte’s Web 1715
severe than the risk faced by any criminal defendant.” 242 Justice Bradley
stated that the court of appeals had correctly observed that the “public
policy underlying the privilege . . . would be thwarted if patients’ health
care records were fair game whenever any third-party initiated a lawsuit
to which those records might be relevant.” 243 While she acknowledged
that this was a difficult case and sympathized with the lead opinion’s
goals, 244 she ultimately concluded that the Johnsons had not provided the
court with a compelling argument to demonstrate that their “interest in
financial compensation . . . should trump Charlotte’s right to maintain the
confidentiality of her privileged communications and health care
records.” 245
F. The Outcome in Johnson
Because the Johnson court was so fractured, the current state of the
law is anything but clear. The outcome of this particular suit, however, is
at least partially resolved: on remand, the trial court will employ the
plurality’s in camera procedure to determine whether the Johnsons may
gain access to their daughter’s mental-health records under the new
public-policy exception to the therapist-patient privilege. 246 The policy
concerns raised by the dissent and concurrences, however, are of
particular importance in the development of the law beyond the limits of
this particular case. Because the law remains unsettled, future litigants
and courts hearing third-party negligent-therapy suits post-Johnson have
a unique opportunity to reshape this area of law. The dissent and
concurrences provide a useful blueprint for the arguments to be made on
each side of the debate.
V. AFTER JOHNSON
It is difficult to gauge the impact of the plurality’s holding on future
litigation and the development of the law in this area. Justice Louis
Butler observed in a footnote that—because four justices voted to permit
the Johnsons to proceed on their claim and the in camera review
procedure (endorsed by only three justices) “represent[ed] the least
restrictive means of enforcing this decision”—the trial court should
242. Id. 175.
243. Id. 163 (quoting Johnson v. Rogers Mem’l Hosp., Inc., 2000 WI App 166,
17, 238 Wis. 2d 227, 616 N.W.2d 903).
244. See id. 177.
245. Id. 178 (quoting Johnson, 2000 WI App 166, 18).
246. See id. 78 (plurality opinion).

1716 WISCONSIN LAW REVIEW
employ in camera review of Charlotte’s medical records on remand. 247
Justice Butler cautioned, however, that the trial court should apply the
plurality’s in camera review only in this particular action. 248 The
plurality’s substantive conclusions—both that a public-policy exception
exists and that the best way to protect the privilege while ensuring that
Sawyer claims may proceed is to use the in camera procedure—have no
precedential value and are essentially up for grabs the next time the court
hears a case of this sort. 249 Thus, as a practical matter, Johnson offers
little guidance to trial court judges, litigators, therapists, or families
struggling with accusations of abuse. Similarly, Wisconsin’s appellate
courts are seemingly not bound to follow Johnson by stare decisis,
because the court limited the decision’s precedential impact to the
Johnsons’ suit. 250 Although the future of Johnson is murky, some
theoretical and practical problems with following the plurality’s lead are
already apparent.
A. The Impact of Johnson on Further Development of the Law
Because it does not chart a sure course for future litigation, the
plurality opinion leaves both patients’ rights to confidentiality and
medical providers’ liability risks in legal limbo. 251 It represents a stark
departure from prior Wisconsin and other states’ law, which has
traditionally required a patient’s consent or waiver before intruding on
the privileged psychotherapist-patient relationship. 252 The Johnson
decision diverges from this national trend at the very moment when
courts and legislatures around the country are moving to curtail Tarasoff
247. Id. 4 n.4.
248. See id.
249. See id. 178 n.1 (Bradley, J., dissenting).
250. Id. 4 n.4 (plurality opinion) (directing the trial court to apply the in camera
review “for purposes of this proceeding only”); see also id. 178 n.1 (Bradley, J.
dissenting) (“[T]he lead opinion has no precedential value. Its holding is binding only on
the parties here.”).
251. See infra notes 276-78 and accompanying text.
252. See, e.g., Jaffee v. Redmond, 518 U.S. 1, 15 (1996); State v. Solberg, 211
Wis. 2d 372, 386-87, 564 N.W.2d 775, 781 (1997); see also Johnson, 2005 WI 114,
156-58 (Bradley, J., dissenting) (arguing that, in light of prior law, the plurality failed to
give sufficient weight to Charlotte’s refusal to waive her privilege and “vigorous” efforts
to fight disclosure of her medical records); Flanders v. Cooper, 706 A.2d 589 (Me. 1998)
(rejecting the imposition of liability for Sawyer claims on grounds that it would
impermissibly interfere with the confidential therapist-patient relationship); Doe v.
McKay, 700 N.E.2d 1018, 1023-24 (Ill. 1998) (holding that Sawyer liability would “exact
an intolerably high price” from the privileged therapist-patient relationship). But see
Hungerford v. Jones, 722 A.2d 478 (N.H. 1998) (limiting Sawyer claims to “publicized”
negligent diagnoses of parental sexual abuse, thereby avoiding the issue of privilege).

2006:1683 Untangling Charlotte’s Web 1717
liability in light of increased concerns about its chilling effect on the
patient-therapist relationship. 253
Moreover, the plurality opinion does not further the policy interests
at stake in Sawyer claims. If the policies underlying negligent-therapy
claims are to reduce occurrences of negligent therapy, increase
therapists’ vigilance in protecting third parties, and provide injured third
parties with a remedy, 254 “eviscerating” the privilege is unlikely to
advance these ends. 255 It is more likely that therapists will simply decline
to treat victims of sexual abuse or encourage their patients to refrain from
confronting their abusers out of fear of the attendant liability. 256
The plurality opinion also substantially infringes upon the Jaffee
Court’s strong affirmation of the therapist-patient privilege. 257 The
plurality evades Jaffee in two ways. First, its decision to craft a publicpolicy
exception to the therapist-patient privilege expands the Sawyer
and Tarasoff line of cases in several significant respects—all of which
conflict with the U.S. Supreme Court’s warning against “eviscerating”
the privilege. 258 As Justice Bradley observes in her dissent, the plurality
decision extends third-party negligent-therapy liability to cases in which
the patient asserts privilege, to all forms of therapy, and to any type of
alleged abuse. 259 This broad intrusion upon the therapist-patient
relationship cannot be what the Supreme Court envisioned when it held
that “the psychotherapist-patient privilege is ‘rooted in the imperative
need for confidence and trust,’” 260 both of which are necessary to
promote the nation’s mental health. 261
Second, the plurality’s in camera procedure, which abandons the
requirement of victim consent before judicial review of privileged
material, conflicts with the Supreme Court’s rejection of judicially
253. See supra Part III.
254. See generally Sawyer v. Midelfort, 227 Wis. 2d 124, 147-50, 595 N.W.2d
423, 434-36 (1999) (discussing the policies furthered by the imposition of third-party
negligent-therapy liability).
255. Jaffee, 518 U.S. at 17-18.
256. See id. at 10 (“[T]he mere possibility of disclosure may impede
development of the confidential relationship necessary for successful treatment.”). For a
discussion of Johnson’s impact on therapists, see infra notes 276-78 and accompanying
text.
257. See Jaffee, 518 U.S. at 10.
258. See id. at 17-18.
259. See Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, 154, 283 Wis. 2d
384, 700 N.W.2d 27 (Bradley, J., dissenting).
260. Jaffee, 518 U.S. at 10 (quoting Trammel v. United States, 445 U.S. 40, 51
(1980)).
261. See id.

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crafted balancing tests in Jaffee. 262 The Jaffee Court explicitly voiced its
concern with case-by-case applications of the privilege, observing that
“[a]n uncertain privilege, or one which purports to be certain but results
in widely varying applications by the courts, is little better than no
privilege at all.” 263 The Court cautioned that “[m]aking the promise of
confidentiality contingent upon a trial judge’s later evaluation of the
relative importance of the patient’s interest in privacy and the evidentiary
need for disclosure would eviscerate the effectiveness of the
privilege.” 264 For the privilege to serve its purpose, it must be applied
uniformly and consistently, allowing patients and therapists to predict
what communications will be protected. 265
The Jaffee Court’s fear of conditioning confidentiality on a trial
court judge’s case-by-case assessment of the privilege’s importance 266
precisely describes the in camera review adopted by the Johnson
plurality. This procedure permits a trial court judge to scrutinize
privileged records, assess their relevance to the plaintiff’s claim, and
make a determination as to their admissibility. 267 Moreover, the
plurality’s decision to do away with the consent safeguard 268 erodes the
patient’s ability to “predict with some degree of certainty whether
particular discussions will be protected.” 269 As anticipated by the Jaffee
Court, application of the plurality’s in camera review will likely result in
“widely varying applications by the courts” 270 and could “eviscerate the
effectiveness of the privilege.” 271
Because the Johnson court relied upon Wisconsin law in crafting its
public-policy exception to the therapist-patient privilege, 272 whereas the
Jaffee Court relied upon the Federal Rules of Evidence, 273 it may not be
262. See id. at 17-18.
263. Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)).
264. Id. at 17.
265. See id. at 17-18.
266. Id. at 17.
267. See Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, 75-77, 283 Wis.
2d 384, 700 N.W.2d 27.
268. See id. 75.
269. Jaffee, 518 U.S. at 18 (quoting Upjohn Co. v. United States, 449 U.S. 383,
393 (1981)).
270. Id. at 17.
271. Jaffee, 518 U.S. at 18 (quoting Upjohn, 499 U.S. at 393).
272. See Johnson, 2005 WI 114, 33-34.
273. See Jaffee, 518 U.S. at 8. It is worth noting, however, that the Wisconsin
Supreme Court has cited Jaffee approvingly in cases involving privilege under Wisconsin
law. See, e.g., Johnson, 2005 WI 114, 61-62; Sawyer v. Midelfort, 227 Wis. 2d 124,
164, 595 N.W.2d 423, 442 (1999) (Wilcox, J., concurring).

2006:1683 Untangling Charlotte’s Web 1719
bound by Jaffee ’s precedent. 274 At the very least, the fact that the
Johnson in camera review may be impermissible in federal court gives
rise to a two-tiered system of privilege for Wisconsin litigants,
depending on whether the assertion of the privilege occurs in federal or
state court. Thus, regardless of whether the Johnson court was compelled
to consider Jaffee ’s prohibition against judicially crafted balancing tests,
it should have done so in order to avoid this undesirable consequence for
Wisconsin mental-health providers and patients.
B. The Practical Impact of Johnson on Litigators and Therapists
The concerns expressed above are not limited to the realm of theory,
however. The substantive legal questions raised by Johnson will likely
have a profound effect both on therapists seeking to minimize liability
and on litigation strategy.
1. JOHNSON ’S IMPACT ON THERAPISTS
If the lower courts follow Johnson ’s example, therapists will likely
face an increasing number of malpractice suits brought by patients’
families. Johnson ’s impact on therapists may include increased
insurance premiums for therapists who treat victims of abuse, exclusion
of insurance coverage for third-party negligent-therapy claims, and
difficulties in complying with the confidentiality provisions of the Health
Insurance Portability and Accountability Act. 275
It is also clear that, post-Johnson, therapists must exercise much
caution in committing to confidentiality with their patients. Accurate
disclosure of the circumstances under which they may be required to
release records may well have a chilling effect on a patient’s willingness
to be forthcoming in therapy or even to participate in the therapeutic
process at all. 276 Johnson creates a serious clinical dilemma for
practitioners, especially when a third party may be paying the patient’s
274. This discussion assumes that post-Johnson courts may decide to follow
Johnson’s approach.
275. Among other things, Congress intended for HIPAA to protect the
confidentiality and security of health data by setting and enforcing industry-wide
standards. See Pub. L. No. 104-191, § 261, 110 Stat. 1936, 2021 (1996). HIPAA
supersedes contrary provisions of state law. 42 U.S.C. § 1320d-7(a)(1) (2000). HIPAA
also establishes substantial penalties for noncompliance. See id. § 1320d-6. A plenary
discussion of Johnson’s potential HIPAA ramifications is, however, beyond the scope of
this Note.
276. See, e.g., Jaffee, 518 U.S. at 10.

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medical bills. 277 It creates precisely the circumstance that the Jaffee
Court foresaw and attempted to avoid. 278
2. JOHNSON ’S IMPACT ON FUTURE LITIGATION
From a legal perspective, Johnson ’s in camera review is
exceedingly cumbersome and will overburden already busy courts. The
process of reviewing voluminous medical records, often extending over
years of therapy, will be enormously time-consuming, and the litigation
process will be subject to considerable delay as a result. In Wisconsin’s
already congested dockets, shifting the discovery burden onto the court
can only slow down the litigation process further. 279
The in camera review may also require unassisted judges to make
determinations that would be better made by a mental-health
professional. The procedure essentially places judges in the position of
evaluating and regulating therapists—something that plays against the
courts’ institutional strengths and which other organizations, such as a
professional-licensing board, might be better suited to manage. 280
Additionally, the uncertainty created by the lack of clarity in the
Johnson standard and the fact that a majority of the court did not approve
the holding will undoubtedly lead to increased litigation as patients and
their therapists attempt to limit the scope of the decision while third
parties try to expand it. Changes in the court’s composition may also
radically change the outcome of future claims, as it is unknown who will
replace outgoing justices and how those new justices might vote on the
public-policy issue. 281 These uncertainties mean that plaintiffs in the
277. See Johnson, 2005 WI 114, 17. Johnson suggests that this may be a
typical scenario, particularly when a young adult seeks psychological treatment. See id.
This situation complicates the therapist’s role by requiring the therapist to place the
patient’s interests above those of the party paying the bill. Relatives paying a therapist’s
bill may also feel they are entitled to view the patient’s records.
278. See Jaffee, 518 U.S. at 10.
279. It is worth noting that the Johnson litigation itself has extended over most
of a decade. See Johnson, 2001 WI 68, 9. Because the Johnson court provided little
guidance to the trial court on remand, and has no precedential value for future litigants,
the one thing parents bringing similar claims can be sure of is that their suit will take
years to resolve.
280. The state customarily delegates its authority to regulate the psychological
profession to a body with particular expertise in that arena. See, e.g., WIS. STAT. ch. 455
(2005-2006) (regulating psychologists and creating the Psychology Examining Board).
281. Justice Wilcox has announced his intention to retire at the end of his current
term in 2007. See David Callender, Wilcox Won’t Seek Another Court Term. CAP. TIMES,
Mar. 29, 2006, at A10. Justice Crooks’s term expires in 2007. See Wisconsin Court
System, Justice N. Patrick Crooks, http://www.wicourts.gov/
about/judges/supreme/crooks.htm (last visited Feb. 6, 2007).

2006:1683 Untangling Charlotte’s Web 1721
Johnsons’ position must be prepared to litigate all the way to the
Wisconsin Supreme Court.
The tension between federal and state treatment of the therapistpatient
privilege raises another litigation consideration: choice of forum.
If there is complete diversity in a Johnson-type lawsuit (for instance, if a
non-Wisconsin third party files a complaint in a Wisconsin court against
a Wisconsin therapist with an insurer domiciled in Wisconsin), the
defendants must immediately remove the case to federal court to avoid
the Johnson confusion and ensure that the court will apply the robust
Jaffee privilege. 282 Conversely, plaintiffs must file in Wisconsin state
court in order to survive summary judgment and should also attempt to
name defendants that will destroy complete diversity (that is, defendants
with the same domicile as at least one plaintiff), if they can do so
legitimately.
VI. CONCLUSION
As Justice Bradley observed, Johnson was a difficult case, and it is
hard not to feel sympathy both for Charlotte and for her parents. 283 Still,
while the plurality opinion in Johnson admirably attempts to resolve the
sharp conflict between patients’ confidentiality rights and third parties’
tort rights, it does so at the expense of patients’ rights and of clarity and
consistency in the law. Because the Johnson compromise fails to provide
adequate guidance for lower courts or any real resolution for the Johnson
family, courts addressing third-party negligent-therapy claims in the
future should pay heed to the dissent’s caution and construe Johnson
narrowly.
282. 28 U.S.C. § 1332 (2000).
283. See Johnson, 2005 WI 114, 177 (Bradley, J., dissenting).