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Fwd: Supreme Court Decision



  
  Med-privacy:
  
  I have gone over, and over, and over both the syllabus, the writ of the
  petitioner (and its affirmation of the Court of Appeals, PLUS the dissention
  Justice Scalia (joined with Rendquist) filed in part III. 
  
  Karen, I am more convinced than ever that this was, at best a Pyr'rhic
  victory. I encourage you to obtain a lawyers view of this to support or
  impeach my interpretation. While this was a good test case for criminal
  cases, ALL the justices, ALL of them, re-stated the opine that the court
  system (according to Scalia) "demands" that 'the public..has a right to every
  man's (person's, to make it policitically correct) evidence', precedence as
  set in Trammel v United States, 445 U.S. code, 40, 50.  This was confirmed
  several times, first being United States v Nixon, 418 U.S. code 683, 710,
  (1974). Scalia went on to assert the right of the trial judge to exercise the
  right for all involved to testify in a court case.
  
  My legal collegues from Great Brittain have confirmed that this came straight
  out of ancient English Law, directly out of the Honourable House of Lords. 
  
  Oddly, while Justice Scalia stated, in so many words, that ONLY licensed and
  certified psychologists and psychiatrists were the only real "experts", he
  went on to deprecate them (in his words the real experts) at the end of his
  dissent, since they (psychological societies) were the ONLY parties to file
  (14) amicus briefs (friends of the court), supporting the petitioner. 
  
  EVEN the accomodations to the patient-therapist relationship aside, the
  AFFIRMATION by (in the second to the last paragraph of section IV) asserting
  that, in dissenting with the Appeals court finding "We reject the balancing
  component implemented by that court :"Making the promise of confidentiality
  contingent upon a trial judges' 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."
  
  In other words, the individual trial court's judge still has the right in
  civil cases, to make the call, and as Justice Tobriner explained in Lifshutz
  v State of California (1970), lost in appeal, and lost in the Supreme Court,
  The Supreme Court ruled 'the rule of the law is that the State's right to
  know outweighs the patient's need for privacy'.  As trial judges study very
  little Supreme Court rulings on such narrow cases as this, I think the
  ongoing tendency is and will continue to be every man(woman) must be made to
  offer testimony in a civil matter. When presented with a dilemma of
  disclosure or extending a vague (and probably very obscure privilege) the
  judge will side with full disclosure.
  
  The NPR segment I heard that morning CLEARLY said, mental health records can
  no longer be used against a patient who is accused of a crime, but they are
  fair game, when a mugging victim, wreck victim, workplace accident victim, or
  disabled person with a long medical history, plus, those who have lived long
  enough to endure lifes travails, such as divorces, deaths to relatives,
  employment problems, and disclosed EXTREMELY personal data to the
  psycho-therapist, can still have THEIR dirty laundry introduced as evidence
  against the patient.
  
  If that is to be the law, that is to be the law, BUT...
  
  (A) most trial lawyers are unaquainted in the precedent for in-camera (in
  judges chambers) reading of psychological files, to avoid a circus like took
  place in LA last year), so clients must reveal the information.
  
  1.  No one ever notifies patients that their records can be dredged up 10 or
  15 years later and the very words they thought they were revealing in utter
  privacy, are announced and ridiculed in a public court. Therapists rarely
  mention this little problem.
  
  2. The victim usually NEVER has the resources the insurers have to dredge up
  opposition (on the offender) in such graphic detail that the injured party
  can use AGAINST the person who CAUSED the injury.. ALL the responsibility to
  disclose falls on the injured party. I find this, as a former litigation
  manager for the better part of two decades, to be entirely unfair and a
  severe injustice, and a perversion of judicial and medical protocols. 
  
  TO SUM UP MY POINT, LET ME AGAIN QUOTE JUSTICE SCALIA: "Of course, this brief
  analysis-like the earlier, more extensive discussion... of the privilege...is
  a public good of such transcendent importance AS TO BE PURCHASED AT THE PRICE
  OF THE OCCASIONAL INJUSTICE", as in the disclosure of private information.
  
  My initial gut reaction is that little will change, except in narrow criminal
  cases, where the therapy was offered by social workers. As for the rest, I
  feel that time will tell that all else will remain as it was all along. There
  is simply too much precedent (I listed only three or so) for full disclosure.
  My greatest regret is that the public is generally unaware of the court's
  opinion. To quote Justice Tobriner again "They (patients) can choose to
  preserve the privilege that shields their privacy; they need only refrain
  from placing their mental health at issue in litigation." In other words, if
  you don't want your dirty laudry read out in a public court, don't file a
  lawsuit.
  
  In an environment where insurers are AGGRESSIVELY denying claims, FORCING
  injured parties into court, where cases involve permanent disability, or
  hospital costs of one, two hundred or three hundred thousand of dollars in
  medical bills to the injured parties are created, I find this an unacceptable
  and indefensible evasion.
  
  Alex
  
   >>
  
  
  ---------------------
  Forwarded message:
  Subj:    Supreme Court Decision
  Date:    96-06-18 14:18:16 EDT
  From:    METRA1001
  To:      KSHORE
  
  Karen:
  
  I have gone over, and over, and over both the syllabus, the writ of the
  petitioner (and its affirmation of the Court of Appeals, PLUS the dissention
  Justice Scalia (joined with Rendquist) filed in part III. 
  
  Karen, I am more convinced than ever that this was, at best a Pyr'rhic
  victory. I encourage you to obtain a lawyers view of this to support or
  impeach my interpretation. While this was a good test case for criminal
  cases, ALL the justices, ALL of them, re-stated the opine that the court
  system (according to Scalia) "demands" that 'the public..has a right to every
  man's (person's, to make it policitically correct) evidence', precedence as
  set in Trammel v United States, 445 U.S. code, 40, 50.  This was confirmed
  several times, first being United States v Nixon, 418 U.S. code 683, 710,
  (1974). Scalia went on to assert the right of the trial judge to exercise the
  right for all involved to testify in a court case.
  
  My legal collegues from Great Brittain have confirmed that this came straight
  out of ancient English Law, directly out of the Honourable House of Lords. 
  
  Oddly, while Justice Scalia stated, in so many words, that ONLY licensed and
  certified psychologists and psychiatrists were the only real "experts", he
  went on to deprecate them (in his words the real experts) at the end of his
  dissent, since they (psychological societies) were the ONLY parties to file
  (14) amicus briefs (friends of the court), supporting the petitioner. 
  
  EVEN the accomodations to the patient-therapist relationship aside, the
  AFFIRMATION by (in the second to the last paragraph of section IV) asserting
  that, in dissenting with the Appeals court finding "We reject the balancing
  component implemented by that court :"Making the promise of confidentiality
  contingent upon a trial judges' 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."
  
  In other words, the individual trial court's judge still has the right in
  civil cases, to make the call, and as Justice Tobriner explained in Lifshutz
  v State of California (1970), lost in appeal, and lost in the Supreme Court,
  The Supreme Court ruled 'the rule of the law is that the State's right to
  know outweighs the patient's need for privacy'.  As trial judges study very
  little Supreme Court rulings on such narrow cases as this, I think the
  ongoing tendency is and will continue to be every man(woman) must be made to
  offer testimony in a civil matter. When presented with a dilemma of
  disclosure or extending a vague (and probably very obscure privilege) the
  judge will side with full disclosure.
  
  The NPR segment I heard that morning CLEARLY said, mental health records can
  no longer be used against a patient who is accused of a crime, but they are
  fair game, when a mugging victim, wreck victim, workplace accident victim, or
  disabled person with a long medical history, plus, those who have lived long
  enough to endure lifes travails, such as divorces, deaths to relatives,
  employment problems, and disclosed EXTREMELY personal data to the
  psycho-therapist, can still have THEIR dirty laundry introduced as evidence
  against the patient.
  
  If that is to be the law, that is to be the law, BUT...
  
  (A) most trial lawyers are unaquainted in the precedent for in-camera (in
  judges chambers) reading of psychological files, to avoid a circus like took
  place in LA last year), so clients must reveal the information.
  
  1.  No one ever notifies patients that their records can be dredged up 10 or
  15 years later and the very words they thought they were revealing in utter
  privacy, are announced and ridiculed in a public court. Therapists rarely
  mention this little problem.
  
  2. The victim usually NEVER has the resources the insurers have to dredge up
  opposition (on the offender) in such graphic detail that the injured party
  can use AGAINST the person who CAUSED the injury.. ALL the responsibility to
  disclose falls on the injured party. I find this, as a former litigation
  manager for the better part of two decades, to be entirely unfair and a
  severe injustice, and a perversion of judicial and medical protocols. 
  
  TO SUM UP MY POINT, LET ME AGAIN QUOTE JUSTICE SCALIA: "Of course, this brief
  analysis-like the earlier, more extensive discussion... of the privilege...is
  a public good of such transcendent importance AS TO BE PURCHASED AT THE PRICE
  OF THE OCCASIONAL INJUSTICE", as in the disclosure of private information.
  
  My initial gut reaction is that little will change, except in narrow criminal
  cases, where the therapy was offered by social workers. As for the rest, I
  feel that time will tell that all else will remain as it was all along. There
  is simply too much precedent (I listed only three or so) for full disclosure.
  My greatest regret is that the public is generally unaware of the court's
  opinion. To quote Justice Tobriner again "They (patients) can choose to
  preserve the privilege that shields their privacy; they need only refrain
  from placing their mental health at issue in litigation." In other words, if
  you don't want your dirty laudry read out in a public court, don't file a
  lawsuit.
  
  In an environment where insurers are AGGRESSIVELY denying claims, FORCING
  injured parties into court, where cases involve permanent disability, or
  hospital costs of one, two hundred or three hundred thousand of dollars in
  medical bills to the injured parties are created, I find this an unacceptable
  and indefensible evasion.
  
  Alex