• Taking Chances2:24

The psychotherapist-patient privilege, which protects confidential conversations between patients and therapists, was already in place in one form or another for state law claims throughout the United States. But Jaffee v. Redmond was the first time the U.S. Supreme Court recognized the privilege in federal suits.

The case involved an Illinois police officer, Mary Lu Redmond, who sought counseling with a licensed clinical social worker after shooting and killing a man while on duty, The man's family filed suit in federal court, seeking compensation under a federal statute protecting civil rights.

As the lawsuit progressed, the plaintiff discovered that Officer Redmond had been to more than 50 counseling sessions with the social worker. They requested the records of these sessions, but Redmond would not consent to their release.

Even after a district court judge ordered that the records be turned over to the plaintiff, Redmond and her therapist refused. The judge advised the jury that this refusal was without justification, and they could presume that the notes would have been unfavorable to Redmond. The jury found against Officer Redmond.

Redmond appealed and the Seventh Circuit Court of Appeals said the psychotherapist-patient privilege should have been recognized under the Federal Rules of Evidence, The Supreme Court later reviewed the case, agreed with the Seventh Circuit's conclusion, and even bolstered the support for the psychotherapist-patient privilege. Writing for the majority, Justice Stevens made it clear that the privilege should be something that therapy patients can rely on.

In Massachusetts, a rape crisis 'center recently refused to give up one of its client's counseling records which an accused rapist wanted to review for his defense. As was the case in Jaffee, the judge in Commonwealth v. Fuller ordered that the records be turned over to the defendant but the patient and the center declined. The executive director of the center was held in contempt of court for this refusal and the center appealed the decision.

Ruling on this appeal in favor of the rape crisis center, the Supreme Judicial Court of Massachusetts declared an absolute privilege for the counseling records of rape victims. Consistent with the Constitution, they will continue to allow criminal defendants the right to material when there is a reasonable risk that nondisclosure ntight result in an erroneous conviction.

However, they do not want an automatic review by a judge of extremely private and sensitive privileged material. The new rule is that a defendant must demonstrate to the judge that there is a good faith, specific, and reasonable basis for believing that the records will contain exculpatol)' evidence which is relevant and material to the issue of the defendant's guilt Only in these circumstances should the judge issue a court order allowing the judge to review the records and determine if they will, indeed, be turned over to the defendant.

Both cases remind psychotherapists that there are very few instances in which they should turn over a patient's record without the patient's express consent. Although therapy records enjoy the most protection, physicians generally should be cautious about giving up patients' records. The Massachusetts Supreme Judicial Court in Fuller noted that "keeper of records ...  has the obligation to assert a client's privilege" with regard to those records. In some instances the keeper of the records is a hospital medical records department, but in many situations it is a physician or, on behalf of the physician, an office administrator.

Physicians often receive requests for patient records from parties involved in litigation. This process usually begins with the patient's attorney sending a letter and a signed authorization to the physician asking for the records. If a lawsuit is already underway, the physician may receive what is known as a Subpoena Duces Tecum. This document requests that the physician, or a representative, bring the records to a deposition.

Very often, both the plaintiff and the defendant in a suit will agree that, instead of appearing in person, the physician can forward the records to one of the attorneys. However, there are certain instances in which attendance may be necessary. For example, if the records  contain sensitive material such as information about sexually transmitted diseases, the physician or representative might need to appear at a deposition to ensure that the patient does not have any objections.

To release records which contain privileged material, such as psychotherapy notes, the physician needs more than a general authorization. In many cases, physicians ask for an additional, explicit, written release from the patient.

If a patient does not consent to the release of records, then one party or another in a lawsuit often applies for a court order. As highlighted by the cases discussed from the United States and Massachusetts    Supreme Courts, court orders for the production of records can only be enforced under very specific circumstances.

If a physician faces a situation in which a patient objects to the production of records and other parties present a court order for the documents, the physician is well advised to seek legal advice. Medical malpractice insurers, if notified by a physician of this kind of situation, will often appoint an attorney to give the physician advice about how to respond and to represent the physician's interest. Although this seems to be a time-consuming approach, this is the best way for a physician to ensure that he or she complies with this rapidly evolving law.

High Court Rules on Privileged Conversations

by Attorney Frank E. Reardon

October 1996

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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