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Supreme Court Decision

  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 
  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