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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