Supreme Court Decision

["Meg H. O'Donnell" <mhodonnell@yaz.hca.state.vt.us>]

I've finally found a chance to sit and read through both the majority 
opinion in Jaffee v. Redmond, the recent Supreme Court case involving 
the psychotherapist-patient privilege, and the dissent by Justices 
Scalia and Rehnquist.  I would like to add the following points to 
the discussion of the case on this list:

1.   This was *not* a criminal case, and its impact is not restricted 
to criminal cases.  The case involved a civil lawsuit seeking damages 
for the violation of both state (Illinois wrongful death) and federal 
(civil rights) statutes.

2.   As the opinion noted, all states currently have some form of a 
psychotherapist-patient privilege.  This case took the extra step of 
recognizing a similar privilege for cases brought in federal courts 
under federal laws (like the Section 1983 civil rights statute at 
issue here).

3.  The majority opinion *strongly supported* the privilege.  
Dwelling on Justice Scalia's dissent in an effort to understand the 
impact of the ruling is not very fruitful.  As others have pointed 
out, "We won;  they lost."

4.  This ruling supports the average person's understanding that your 
medical records should not be used against you in cases that are not 
of your own choosing.  This is distinct from the traditional concept, 
recognized in every state, that *if you put your medical condition in 
issue*, you cannot rely on the privilege to deprive the court of 
evidence that will shed light on your claims.  While there is still 
much that can be done to reduce potential abuses of medical records 
in litigation, there are tools that every lawyer and judge is 
familiar with that can help preserve privacy expectations (like in 
camera hearings and the sealing of court records).  It is important, 
however, that we all understand that if we sue someone for an injury 
(as in, "Your car hit my car and now I've got whiplash and lower back 
pain and carpal tunnel syndrome, plus I can't sleep at night any 
more"), we cannot expect the other side to simply confess to all 
wrongdoing and pay everything we ask for.  I've seen far too many 
cases of people claiming all kinds of injuries stemming from a simple 
incident because -- guess what? -- they might get a free ride from the 
jury.

In sum, I think that the law of confidentiality was greatly 
strengthened by Jaffee v. Redmond.  That doesn't mean there isn't 
still a lot of work to do!

_____________________________________________
Meg H. O'Donnell
General Counsel
Vermont Health Care Authority
mhodonnell@yaz.hca.st.vt.us