*3 Bеfore TJOFLAT BIRCH, and Circuit For his treatment, alcoholism Judges, and BRIGHT*, Senior Circuit selected defendant-appellant Talbott Judge. Marsh Recovery System, (“Talbott Inc. Marsh”)1 in College Park, Georgia. He BIRCH, Circuit Judge: was admitted to affiliated Anchor Hospital This appeal concerns validity of an (“Anchor”) on 11, 1993, October with ad- alcoholic physician patient’s release used mission diagnoses of alcohol and nicotine by an addiction recovery facility to send to dependencies. Regarding nonchemical ad- a state medical licensing board psychiatric dictions, it was noted in his admission his- and psychological in- tory that Dr. Hicks “may have a problem cluding sensitive sexual disclosures. The with a sexual compulsion as manifested by jury rendered a in verdict the physician’s several affairs.” (Anchor Joint Exhibit 16 favor, and the district judge post- denied Hospital/Talbott Marsh Recovery System trial motions for judgment as a matter of Admission History and Physical Examina- law and a new trial. We affirm. tion, 11, 1993). Oct. Anchor’s “Patient’s Rights” represented that Dr. pri- Hicks’s
I. BACKGROUND vacy would be respected and that his treat- October, In 1993, plaintiff-appellee, ment records were confidential.2 An ini- Raymond Hicks, D. was employed tial as an neuropsychological evaluation revealed internist Baylor University Medical that Dr. Hicks had cognitive some impair- Center (“Baylor”) Dallas, in Texas, in both ment that was attributed to his alcohol its Employee Health Clinic and its Senior abuse. Because alcoholism was identified * Myron Honorable Bright, H. Senior U.S. Cir- See id. Talbott Marsh also is known as Tal- Judge cuit Circuit, Eighth for the sitting by Inc., bott-Marsh Recovery System, Talbott designation. Marsh Recoveiy System, or Talbott Marsh 1975, 1. In Dr. G. Douglas Recovery Talbott Center. founded Talbott specifically physicians treat suffering from addictions, chemical and other Rights, Anchor’s Patient's adopted from sex, such as food and that impair competency those of the Hospital Association, American judgment. and By involving members, family provide pertinent part: in employers, appropriate and others patient The has the program, right every the philosophical/treat- consider- ation objective ment of his privacy concerning Talbott Marsh help is to own physician medical care “begin program program. discussion, recovery Case consultation, examination, disease of dependence chemical and and treatment re- turn family are profession.” his/her and confidential and should Joint be сonducted (brochure Exhibit 14 discreetly. describing the Talbott Marsh Recovering Physicians Program). The affiliation of Talbott Marsh with The Anchor right Hos- has expect all pital provides the evaluation and care of a communication and records pertaining to general full-service hospital in assisting care should be treated as confidential. its intervention, addictive disease including (Anchor Joint Exhibit 16 Hospital Patient's detoxification 3,000 and ¶¶ stabilization. Over Rights 5-6, at signed by Dr. Hicks on Oct. physicians have been 11, at treated this 1993). facility. first this case. relate to member evaluation problem, primary as Patient System Recovery Talbott awas ad- any sexual potential confirmed which agreement, Rights his alcohol until deferred diction records,4 his treatment confidentiality control.3 under abuse Recovery the Talbott the second evaluation, Dr. imtial Following Ms agree- Responsibilities System Patient’s No- Anchor discharged from Hicks participate him to ment, required transfer for immediate vember can- actively and program his treatment Talbott nearby residence didly.5 Anchor His treatment. therapeutic also November On diagnoses final summary lists discharge with a conjunction signed dys- dependencies alcohol mcotine *4 agree- orientation patient a member staff the For depression. thymic disorder confi- the of parameters the stating ment time, psychological/psychi- the under first That records. treatment his dentiality of summary assessment, discharge the atric pro- law that federal specifies document history a Dr. Hicks that states confidentiality of tects and prostitutes sex with well as as affairs and that Marsh of Talbott records problems sexual described he had that an absent be released cannot those compulsive. as court a by patient, release authorized personnel medical Marsh, order, or disclosure Talbott his admission Upon circumstances, medical as a such special also that agreements two signed Dr. Hicks agree- confidentiality The emergency.6 staff Marsh a Talbott by signed health another your transfer assessment, case Hicks physical During his 3. institution in his care pains, which resulted developed chest 5, (Talbott 2, ¶¶ 1, 2, 15 at Exhibit treat- Joint further for to Dallas temporary return by signed Rights, Recovery Patient System His Octo- cardiologist there. ment from 4, 1993). summary lists Nov. 1993, discharge on 20, Anchor ber nicotine and as alcohol diagnoses final responsibilities patient's Talbott dysthymic disorder 5. The well as dependencies as states: agreement to Anchor re-admitted He was depression. diag- 1993, 24, admitting an with on October ... RESPONSIBILITY HAVETHE YOU dependence. alcohol nosis of that relate to matters about be honest To patient; you as a agree- rights patient's 4. The Talbott problem; your attempt to understand To ment states: and ad- the directives follow attempt to To staff; by ... offered vise RIGHT HAVE THE YOU expecta- policies and members staff expect, comply reasonably To To welfare, com- Program; and your care responsible for tions concerning your treatment part in information current active plete and take an To treatment, condition, diagnosis, your program.... (Talbott can you 1-3, ¶¶ language Re- in terms and 11-12 prognosis at17 Exhibit Joint medically understand, inadvisa- Responsibilities, it’s unless Patient’s covery System so 1993). you information give ble to Nov. on by Hicks signed Dr. record; your medical documented agree- confidentiality Talbott The for, therapy of, your part privacy is respect To patient for ment consultations, discussions, orientation, Case program. provides: patient examinations, confiden- are and treatment drug confidentiality of alcohol discreetly; should conducted tial and by Tal- maintained patient abusе pro- System, Inc. Recovery bott-Marsh confidential assured To be regulations. law by Federal tected records, you personal your Sys- Recovery Generally, Talbott-Marsh release their approve or refuse may person outside say tem,Inc. may not Recovery Sys- Talbott outside individual attended] program provided tem, except otherwise Inc. iden- any information or disclose contract, program, inor party payment a third law or farther ment states that criminal Joint Exhibit 4 A). (Appendix He act potential or a criminal act a patient signed the January 1994, for is unprotected by ,Dr. federal law shielding G. Douglas Talbott, as the records patient confidentiality. custodian, to provide the requested rec In a ords. letter dated December Lubin testified that he knew Pease, Sharon Senior Investigator Marsh records coordina Texas State Board of Medical tor would Examiners need a Talbott Marsh release (“Texas Board”), informed Dr. rather than the Texas Board release to she had been assigned to investigate his send Dr. Hicks’s treatment records to the “admitted problem with alcohol abuse.” Board, and he asked Dr. Hicks to Joint Exhibit 3. In addition to commending sign a Talbott Marsh release. While this him for entering his alcohol- Talbott Marsh release also could be re ism, requested she additional information voked writing time, at any it differed specifically about his alcohol abuse7 and from the Texas Board that, release in requested that he complete an enclosed revocation, without it was effective to re release of his Talbott Marsh treatment lease all of Dr. Hicks’s treatment records records. Dr. Hicks sought the advice of year for one from the date that signed defendant-appellant Dr. Barry Lubin, H. it. *5 Director of Continuing Care at Talbott Marsh, in responding to the request for his Instead of signing the release of Dr. records the Texas Board. Hicks’s Talbott Marsh treatment records Dr. Lubin was the Talbott Marsh staff to his state medical licensing board as responsible member for advising physician witness, a Dr. Lubin and his assistant com- patients on communications and issues pleted the release of Dr. Hicks’s treatment with their respective state licensing records to Sharon Pease the Texas boards. Board Dr. Hicks for the purpose of for When he met Lubin, with Dr. “Continuing Dr. Hicks Care.” Joint Exhibit 5 (Ap- completed the Texas B). Board pendix release autho- With vertical slash marks that rization specified that his treatment covеr all categories possible information, records that were to be sent to the Texas including “Psychiatric/Psychological” rec- Board were for “11 Oct 93 present.” to ords, this release, as completed by Dr.
tifying patient a as an alcohol drug and/or neglect abuse or being from reported under abuser unless: State law appropriate to State or local au- (or 1. patient parent in the case of a thorities. minor) completes a Talbott-Marsh Recov- (Talbott-Marsh Joint Exhibit 17 Recovery ery System "Authorization and Consent System, Inc. Confidentiality of Alcohol and to form; Release Information” Drug Records, Abuse Patient signed by Dr. 2. the disclosure a allowed court 4, 1993). Hicks on Nov. order; or 3. the disclosure is made to per- 7. Pease's requested letter that pro- Dr. Hicks sonnel in a medical emergency or to vide answers to the following questions con- qualified personnel research, audit, for or abuse; cerning his alcohol program evaluation. 1. your What is anticipated Violations of the discharge Federal law and regula- date by program tions for this a is a treatment? Suspected crime. may violations 2. you Have reported ever to been appropriate treated for alcohol authorities drug so, accordance past; when, with abuse in reg- Federal if ulations. where? Federal regulations law and 3. protect your do not Describe alcohol use and how it any information about your practice. affected crime committed by patient either at the facility against According letter, your you admitted person any who works for the facility or to alcohol use caring while patients for at about any threat to commit such a Center; crime. Living Senior please explain Federal laws regulations protect do not this detail. suspected information about child Joint Exhibit 3. specifically member staff Marsh Talbott Dr. all send Lubin, effective advising physician for responsible records Talbott Hicks’s li their state relating to issues regarding year one for Board Pease boards licensing state censes, that testified signature. Hicks’s Dr. date than issues to sexual sensitive are more that: admitted Dr. Lubin Id. issues. dependency chemical are to they his hand- it wasn’t said when he did that Nevertheless, testified he also form, it wasn’t. that some writing on he discussed not believe physicians Most it. I did mine. It was have would that one “the concerns I did. things. do those don’t in psychosexual privy if a Board was just alcohol оpposed formation I made Continuing Care. I wrote information,” although drug top. on his name put I marks. slash patient in his noted compulsion was sexual number, social chart did assistant My Talbott Because R7-164. history.8 My date. birth number security encompassed prospective dates both did I believe assistant existed only treatment 3rd, January 94.... it but also signed the date date, from that year produced those I marks, when my intention My slash release, as Dr. Hicks’s to release w[as] marks those slash made Lubin, operative completed by record because entire Hicks’s] [Dr. Sharon his treatment send requested. Board [Texas] what that’s next for the Board at the Texas Pease evalu subsequent R6-140,141. included year, his sex potential ations testified Dr. Lubin Additionally, *6 Nonetheless, Dr. Lubin compulsion. ual that understood Dr. Hicks that “assumed” Talbott of the aspect explain this not did release prospective a signing was Hicks, though even to Dr. release Marsh be created records treatment handwriting in his specified had Dr. Hicks not does record R7-156. future. that his treat release Board on the Texas Dr. Hicks’s Lubin reviewed Dr. that show Texas be sent could records ment prior records treatment Marsh Talbott 1994,9 3, and January through only of Board concerning the release him аdvising requested had Board the Texas the Talbott completing records those his solely to alcoholism.10 relating Lubin, Dr. for him. Marsh sex, cocaine, internist, had had an was the Talbott trial, agreed that Lubin Dr. At 8. Tal- he entered In eating addictions. patient’s disclosure policy that Marsh addictions, these treatment of bott only if the was valid information to his state them not disclose he did but specific he understood so that informed his never had Lubin licensing Dr. board. benefits and the requested information revoked, and he suspended license releasing information that disadvantages of licensing state by investigated his not policy.” R7-163. a "fine dependencies. concerning board treatment, was em- Lubin Dr. Following release, that Talbott We note 9. acknowl- Lubin Dr. Marsh. by Talbott ployed Board, pro- the Texas the release unlike definitely” could “most that he edged at trial (Please speci- "Other category entitled vided a Dr. Hicks: with empathize specify _,” could Dr. Hicks wherein fy): many other I like reasons to be One precisely what recovery field are in the employed with people accordance Board the Texas sent to we have because we do at what good Texas on the done request as he had their sitting who are (Ap- where Exhibit been Compare Joint release. Board sober, get get able have been (Appendix 4 at 2 B) pendix there Exhibit Joint life far quality of recovery live into A). have thought I could ever I better than before. situa- had a similar Lubin Ironically, Dr. Lubin, R7-273-74. also who Dr. Hicks. that of tion to In contrast to Dr. Lubin’s view of the that Dr. Hicks was admitted to An- requested release of on chor/Talbott Marsh October testified, Dr. Hicks on based his designat- he was being treated for chemical ed limitation on the Texas release, Board dependence with no established discharge that he date. Dr. represents Lubin in his letter that it
authorized was written at Marsh to request release in- Hicks’s and with permission. formation they Yet, had regarding my no copy treat- ment from 11 is shown. October 93 which was the date my admission to Anchor Hospital By the end January, 1994, Dr. Hicks to the present time I perceived progressed sufficiently in his treat- be the date 1-3-1994, and I believed ment for his primary problem, alcoholism, that that was information I that a full evaluation of his secondary was allowing release, them to either problem, sexual compulsion, could ac- this form or by the other form which complished for the purpose of determining you seen. have a course of treatment.11 Dr. Riсhard R. R6-58. Irons, When shown the Talbott a psychiatrist specializing release purportedly executed him evaluation treatment of sexual disor- January 1994, Dr. ders, Hicks could identify performed psychosexual assess- only his signature and testified ment Dr. Hicks. During that evalua- “other handwriting” tion, and “slash marks” on Irons learned that Dr. Hicks’s the release were not his. Id. consensual He testified sexual relationships with vari- that he did recognize ous the Talbott individuals included patients. Dr. Ir- Marsh release being “in its current ons form documented Dr. Hicks’s revelations in I when signed it.” Id. at 59. Significant- progress notes that part became a of Dr. ly, Dr. Hicks did not realize that the Tal- Talbott Marsh patient history. bott Marsh release was prospectively oper- In a letter 1, 1994, dated February ative for year: one requested Board Dr. Hicks’s Talbott That was not my understanding at all. Marsh medical records within two weeks My understanding of this was that the so that a complaint alleging a violation of Texas Board needed to know something the Medical Practice Act could be evaluat- *7 about my treatment, and that Dr. Lubin ed.12 time, At that the only information was a person whom I contacted about that the Texas Board had from Talbott this, Dr. that Lubin was aware of Marsh concerning Dr. Hicks was Dr. Lu- issues that I with, dealing was and that 6, bin’s January 1994, letter. Dr. Hicks would, he it my was understanding that again went to see Dr. Lubin for advice in he would not send anything which responding letter, to this and he testified would be to me. harmful he that quite “was concerned because the added). (emphasis Id. information regarding my psychosexual problems had been discussed with Dr. Ir- Rather than responding to specific ons.” R6-62. questions regarding Dr. Hicks’s alcoholism that Sharon Pease of the Texas Board had Dr. Lubin called in his assistant and requested in her 15, 1993, December letter dictated a responsive letter to Sharon to Hicks, Dr. Dr. Lubin sent her a letter Pease in Dr. presence. Hicks’s That letter dated 6, January 1994, that verified only states that Dr. Hicks was transferred to part 11. As of his treatment for thorization, sexual addic- Dr. designated Hicks Dr. G. tion, Dr. signed Contract,” Hicks a “Celibacy Douglas Talbott as the Talbott Marsh records which co-signed was by a staff member. custodian. Apparently, the names were merged inadvertently. 12. This letter is addressed to Douglas "G. Hicks, MD.” On the Texas Board release au- to addiction sexual 1993, facility specializing 4, November on Marsh Talbott Dr. Hicks chose problem. with that deal and dependence his chemical treatment Plano, (“Charter”) Hospital Charter the treat with cooperаting he was being home while Texas, his near to be Hicks is Dr. to copy no program; ment Hicks addiction. Dr. sexual for his treated Hicks to Dr. asked also Lubin Dr. shown. Marsh for Talbott from discharged was release. Marsh Talbott another complete 1994, 19, March to Charter transfer form the same release Although the nicotine and alcohol diagnoses final before, with the in signed had Dr. Hicks disorder, February and dysthymic dependencies, this to pursuant be sent to formation fea- with addictive disorder psychosexual This different. 1994, release 24, Charter at his treatment Following tures. “Corre only the time, checked Dr. Hicks return to addiction, he was sexual “letter specified category spondence” discharge. for final Talbott purpose Lubin,” was for the B. of treat Board State “Informing 28, 1994, March Board sent Texas (Appendix Exhibit to date.” Joint ment Hicks’s Dr. requesting letter specifically that he C). testified Dr. February Hicks its was identical than other anything if Dr. Lubin asked this letter letter, 1994, except that 1, Texas to the sent be would letter dictated Douglas Talbott Dr. G. addressed “That’s replied: Lubin Board, Dr. 'and Exhibit Joint Request.” stamped “Second Furthermore, psy- his after R6-64. Carolyn it.” Per- request, to this Pursuant Dr. Irons with evaluation chosexual medical kins, Talbott Tillery, Cliff commenced, asked Dr. Hicks Dr. sent all coordinator, copied he had whom with therapist including primary psycho- of the therapy, Irons, whether group Dr. therapy psychosexual to the sent be would 1994, information sexual based on April Board Texas it would said that Board, Tillery Texas Talbott January upon the but Board the Texas reported completed be but Dr. signed sexual to attend needed Al- assistant.15 Lubin by Dr. classes.14 degree addiction Perkins, not have who did though records tech- as a medical accreditation de- Tillery Irons Subsequently, that she administrator, testified to a nician go Hicks-needed termined that of that information. aware made meeting with Dr. this described 13. Dr. Hicks Talbott, the session, Douglas G.Dr. affidavit, In that when in his Lubin Marsh, represent- Talbott director of in- the release about concern expressed in- send me, never Marsh would ed that reassure order to In formation. to the problems sexual regarding dictated as he to listen me Lubin allowed very formation re- Examiners. Board Texas Medical Board letter State narrow Ray- (affidavit of for alcoholism. my ÍE A garding Rl-1-Exhibít *8 added). be the Thus, that would Hicks, M.D.) that (emphasis I was reassured D. mond Texas to the released only information Lubin, Dr. certainly that believed policies, I Board. Marsh with Talbott accordance 15. In doctоr, aware was well medical licensed appears as a handwriting that her testified Perkins confidentiality. necessity the 28, 1994, request for top March of the the on ¶3, (affidavit Ray- F A at Rl-l-Exhibit Board Texas from the records treatment added). Hicks, M.D.) (emphasis D. mond were sent records Dr. Hicks’s that *9 at Talbott Marsh and were an instrumental during family therapy sessions. part of recovery his program. 4, ¶ (affidavit Rl-l-Exhibit A at D. I Raymond of Hicks, M.D.). non-public This contract had to be accepted by any employer Therefore, of Dr. Hicks. 18. Dr. Hicks his sign refused to a medical rec- any potential former or employer ords for would his be treatment at Charter. fully apprised addictions, of his partic- his Ironically, 19. before his discharge ipation from the in the Talbott recovery Marsh pro- Talbott Marsh recovery program, Dr. gram, Hicks and the cumulative of decision his ther- bewill probably and addictions] in ing record, the was Order, public a Agreed of medi- practice the into break to per- would able Board the Texas way that cau- be needs to He slowly. quite license.20 his medical cine to retain him mit than more working about tioned on Charter from discharge Following his re- year of first for the week hours a care the under was 1994, Hicks 6, Dr. May ad- I would Again, practiсe. to turning referring psychiatrist his of and treatment practice the returning to his vacate Dallas, and he in for addictions in specializing medicine. sexual and Anonymous Alcoholics of attended 24, On October there. programs added). addiction (emphasis at 343 Id. Talbott to re-admitted was 1994, Hicks Dr. Talbott discharged from was Hicks Dr. overcom- regarding to be evaluated 1994, a sufficient- as on October addictions and sexual alcohol ing his his medi- re-enter ly recovered his medical re-entering of purpose the Till- therapist, primary His practice. cal in Dr. Hicks’s stated As practice. Irons, addiction sexual his Dr. and ery, Octo- performed on reassessment sum- discharge his signed psychiatrist, and dependence alcohol his ber diagnoses: his final as states mary, remission,” “in were disorder sexual his with “Paraphilia and dependence” “Alcohol “under was condition dysthymic his 299. Id. at addictive, features.” exploitive Exhibit Joint medication. with treatment” was assessment final The psy- staff evaluating at ongo- an practicing committed “appears following assessment the made chiatrist willing to and is recovery of program ing recommendation: at for him available support utilize the pro- good a has Hicks] [Dr. man This Director as capacity In his Id. home.” I for him going recovery gram Dr. Care, wrote Lubin Dr. Continuing advocacy him give would personally specializing referring psychiatrist He medicine. practice the return Hicks would whom with in addictions consultations doing some looking letter on therapy recovery his continue specializ- psychiatrist referring for [his Hicks practice, Dr. medical placed on that he hospital/physician referring apists and re- cross-examination on follows as testified of medicine practice ready to resume Agreed the effect detrimental circumstances, garding including delineated under in re-entry contract contrast in Order Tal- his addictions. therapy for continuing physician: as a employment obtaining periodic reassess- additionally has bott Marsh public document presenting I believe discharge. following itsof ments it to a of information kind with that my preclude would employer prospective my percep- that "it testified Hicks 20. Dr. employment. obtaining Agreed Order sign this I was either it tion that conditions, I lose or that these terms with would I re-entry contract] And [with were the two entirely. Those my license advocating for me Dr. Irons have had working purpose important An R6-82. choices.” em- prospective with the me with as well re-entiy contract ployer. preclude towas Agreed Order Board might be being situations were employers] [prospective they I believe of the Because patients. compromising Order. Board this prejudiced however, Order, Agreed nature of public finding employment chances Hicks's public document. it is a Because similar than less significantly were Hospitals and re-entry contract. non-public, anyone who can read it Because malpractice clinics, provide many of which it, pro- cause it could read wants reluctant are physicians, their insurance prob- should a problems employers spective public order awith doctor staff to have future. lem arise subject may noting conduct Or- Agreed R6-111,112-13. either the With liability. facility to contract, public, re-entry or his der supervi- by the protected patients, re-entry future and his Agreed Although Order sory requirements. the restrictions similar contract *10 action, October and informed him that state including and causes of negli- had completed recovery pro- Hicks gence, breach of fiduciary duty, breach of gram discharged contract, and been from Tal- invasion of privacy, and wrongful bott Marsh. Dr. Lubin further informed privileged disclosure of informatiоn. He this doctor that Dr. Hicks “has been $10,000 sought general in compensato- and practice to return according cleared $1,000,000 ry damages special and in dam- Board Order and with recommendations ages for wages earning lost capacity.21 that, from Dr. Richard Irons” and in his trial, Following jury returned a ver- Contract, Care Continuing Dr. Hicks iden- in dict favor of Dr. in amount “primary tified this doctor as his monitor- $200,000. Talbott judg- Marsh moved for professional.” at ing Id. 363. or, ment as a matter alternatively, of law Despite his clearance from Talbott for a new trial. judge The district denied practice Marsh to re-enter his medical un- these motions. Talbott Marsh and Dr. conditions, rigidly specified der Dr. Hicks appeal Lubin these and pursue denials job Bay- could not return to his former arguments. their supporting lor requirements because of the public, Texas Board order. II. ANALYSIS attempts employment to locate at any oth- hospital er the immediate Dallas area Judgment A. as a Matter Lawof also were unsuccessful. The Appellants argue judgment as employment any- he able to find a matter of law should granted have been proximate where residence and con- to them respect to sending Dr. tinuing therapy was a temporary contract Hicks’s treatment relating to his job in prison a state 150 miles from his psychosexual therapy to the Texas Board work, commuting, home. The and sub- signed because he the Talbott Marsh re stantially job reduced income made this encompassed lease that those records. unworkable after three months. Because We review the denial of a judg motion for of his unemployment expenses and the as- ment as a matter of law de novo and apply maintaining sociated with li- his medical the same standards used the district Board, cense with the Texas Montgomery court. See v. Noga, 168 F.3d eventually relinquished it. Loss of his (11th Cir.1999). The evidence deep livelihood caused him depression and supporting the verdict is considered in fa emotional upheavals. nonmoving vor party as are all 17, 1995, On November Dr. Hicks sued reasonable inferences. See id. Marsh, Anchor, Lubin, and Dr. Talbott in Georgia federal court the Northern protects law privi of Georgia. complaint, District His leged based confidential communications between diversity jurisdiction, alleged federal psychiatrist22 psychologist23 licensed salary 21. Dr. Hicks's combined from the protects two definition "[t]his the communications Baylor clinics at the time went into patient whо seeks treatment for mental $150,000 treatment for his alcoholism was annually. disorders from a medical doctor with the ex- pectation that be communications will confidential.” Id. Georgia 22. Supreme Court has defined 24-9-21(5) "psychiatrist” § in O.C.G.A. Georgia law privilege considers the be- broadly person prac- to mean "a licensed to psychologist tween a licensed medicine, tice reasonably believed equivalent attorney be to that of an and client: be, patient so to who devotes substantial "The confidential relations and communica- portion engaged of his or her time psychologist tions between a diagnosis licensed of a mental or emo- condition, placed upon are including drug client tional same basis as those alcohol or Wiles, client; provided by attorney addiction.” law Wiles v. 448 S.E.2d between (Ga.1994). explained The court nothing chapter in this shall construed
1237 ‘disclosures but 24-9-21(5) spoken, merely words §§ O.C.G.A. patient. a See and ” (citation 409 Id. at Wiles, 448 in made confidence.’ 43-39-16; v. Wiles (6),& omitted). policy, public of (Ga.1994). priv a matter “[A]s For these 681, 682 S.E.2d voluntarily are attach, patient the communications psychiatrist-patient ileges to the the sought privileged assistance remain have must are рrivileged v. See Bobo psychologist. or and treat- psychiatrist ‘care though patient’s the even (Ga.1986); re In 690, 691 State, 349 S.E.2d inju- and extent of or nature ment the (Ga.Ct.App. 253, 257-58 L.H., 511 S.E.2d any in civil or (have put) issue been ries ” State, 402 S.E.2d v. 1999); Christenson v. Gins- cf. Plunkett criminal proceeding.’ these (Ga.1991) (recognizing 41, 46 (Ga.Ct.App.1995) 597 burg, 456 S.E.2d psy when the inapplicable are privileges Thus, 24-9-40(a)). § O.C.G.A. (quoting by appointed is psychologist or chiatrist exceedingly strict an law has “Georgia Addi patient). the to examine the court ‘communica- privileged what are view to ex confidentiality privileges tionally, these made- respect disclosures tions’” with professional when only ist treating psychiatrist.25 to a patient aby v. Manning See contemplated. or given Mrozinski, at 409. 423 S.E.2d (Ga.Ct.App. 650, 651 State, 499 S.E.2d 1998) psychiatrist- the (recognizing a considers Georgia law Concomitantly, privileges psychologist-patient patient party “where one relationship confidential rela professional a when materialize controlling a toas exercise situated is so or contemplated “actually tionship was conduct, will, and inter- the over influence ren psychological formed where, a similar from another est of waived, these confiden dered”). Unless confidence, the law mutual relationship Scrog See are absolute. tiality privileges O.C.G.A. good faith.” the utmost requires (Ga.Ct. 252, 254 State, S.E.2d 514 gins v. Maio, 494 S.E.2d 23-2-58; v. Parello § App.1999). (Ga.1998). confidential “[S]ome 333 law, by some created relationships are [psychiatrist-pa object of the “The created contract, may be others full encourage the is to privilege tient] v. Trulove case.” particular a facts of him persuade so as trust of 419 Soc’y, Ins. the World Woodmen Life pri feelings and innermost to reveal “All the (Ga.Ct.App.1992). 327 S.E.2d may give psychiatrist so that vate acts a relation- showing of is the requires law Mrozin treatment.”24 most effective reposing justifies in fact which (Ga.Ct. ship 405, 408 S.E.2d 423 Pogue, v. ski by another.” party in one confidence “not protects privilege This App.1992). omitted) (citations Wiles, at 683 S.E.2d 448 privileged communication require such (omission original). § 43-39-16. O.C.G.A. disclosed.” to be recognized Supreme Court Georgia 24. The psychia- strength of Emphasizing the Supreme Georgia privilege, trist-patient psychiatrist between [c]ommunications and has stated: Court "most protected because patient are must analysis psychiatric privilege is psychiatrist-patient The As patient.” mind come seek- it is who party claims when waived explains: treatise one injuries of damages for ing to recover has a psychiatrist "Among physicians, privi- nature. emotional mental confidentiality. special need to maintain party is a third when lege waived is not is com- help his capacity to His customary necessary or ais present, who willingness upon their dependent pletely and treat- the consultation participant it makes freely. This ability talk when privilege waived is the Nor ment. to func- impossible him if not difficult disclosures claiming it has made person pa- being to assure able tion without actions. separate, unrelated indeed, and, priv- confidentiality tients omitted). (citations Bobo, S.E.2d at A threat ileged communication.... treatment.” secrecy successful blocks *12 Servs., record, Inc. v. Georgia-Pacif Remediation the except privileged matter for 631, Corp., ic S.E.2d 635 (Ga.Ct.App. 433 under the ex- laws this state. Such of 1993). party Because “a to a confidential amination shall on hospital be conducted relationship may rely or fiduciary upon premises facility. the by determined therein, representations made” Dover v. The public clinical record shall not be a Burns, (Ga.1938), 785, such 196 S.E. 789 record and no part it shall be released of good relationship loy of “utmost faith and except: is alty” dаmages breached and are recov A copy may the record be released of fiduciary erable when the uses information any or person entity designated to provided in the relationship confidential to uniting the .... by patient of duty the detriment the one whom the owed, 686, Herring, is v. Tante 453 S.E.2d 37-7-166(a)(l) § O.C.G.A. (emphasis add- (Ga.1994). 688 ed). This prohibits statute the “disclosure of clinical of patients receiving Since the psychiatrist-patient privi hospitals substance absolute, waived, is lege it “cannot be ab abuse”; only way the that these records express sent some intentional act do so” can be released is when a designa- “such Abel, patient. Jones v. 434 S.E.2d tion waiting by was made in patient.” 824 (Ga.Ct.App.1993); see v. Freeman Mrozinski, State, 410; 423 at 42 396 S.E.2d see (Ga.Ct.App.1990). S.E.2d 70 290dd-2(b)(l) § In keeping strong public policy (permitting with the U.S.C. dis- impetus is psychiatrist- for the closure of substance abuse treatment rec- patient psychologist-patient privileges, ords of “with prior written Georgia the relevant statute in pertinent consent the patient”); of 42 C.F.R. pt. part protects psychiatric (1993)26 likewise and psy § 2.3 subpt. & C (permitting chological records: of disclosure alcohol and abuse drug treat-
A ment records patient patient clinical record for eаch shall “with written con- sent”).27 be maintained. Waiver is a voluntary Authorized release relin- of quishment the record shall include but not be limit- some known or right, benefit, of record, which, original waiver, ed examination of the advantage, except for such ” copies any all or portion rec- the party enjoyed.’ otherwise would have ord, (Ga. or disclosure of information from Flynt, Jordan v. 240 S.E.2d 863 SubparL requisite 26. C states the elements of date, event, patient’s (9) a written consent for a release of The upon or condition treatment records: expire which the consent will if re- not date, event, voked before. This or condi- A written consent ato disclosure under must tion insure that the consent will last regulations these must include: longer reasonably necessary no than (1) specific general designa- The name or purpose given. serve the for which it is person program permitted tion of the or C, added). subpt. (emphasis § 42 C.F.R. 2.31 to make the disclosure. (2) The name title of the or individual or regulations The relation federal organization the name of the to which those of state is as follows: disclosure is to be made. (3) patient. authorizing regulations The statutes The name of the these (4) preempt do purpose they the fiеld of law The of the disclosure. (5) cover exclusion of all State How much and what kind laws of informa- permitted that field. tion is to be If a disclosure disclosed. under (6) signature regulations prohibited these is under State .... law, (7) regulations neither The date on which the is these nor the au- consent signed. thorizing may au- statutes be construed to (8) any A statement that the thorize However, State consent sub- violation law. ject any except may at revocation time no state law either authorize program person compel prohibited extent that the disclosure these which is to make regulations. the disclosure has al- added). ready (emphasis § acted in reliance on it. 42 C.F.R. 2.20 (cita- added) 1977) curiam) facility ized treatment at another (emphasis (per Jones, omitted); addiction, see S.E.2d which resulted in his tion sexual relinquishment of a (using voluntary prior to Charter to his final dis- transfer definition of waiver right known or benefit charge Talbott Marsh. re- psychiatrist-patient
in the of a context volitional selection Talbott Marsh and lationship). therapists together its with his actual *13 facility un- treatment that are sufficient principles these
Applying case, Georgia psychiatrist-pa- der law for the we must determine facts of this rela psychologist-patient privileges whether Dr. Hicks had confidential tient and to Georgia was that breached under attached. tionship have required Dr. Although Baylor law. Hicks Believing confidentiality that his was his treatment for alcohol addic to receive protected, underly the basis public policy tion, facility to select the permitted he was recovery ing privileges these and addiction chose treatment. Dr. Hicks Tal- this therapy, Dr. Hicks revealed to these thera principally purported for its bott Marsh Irons, Dr. pists, specifically to albeit more suffering from ability help physicians to addiction, the of his sexual includ details successfully return to various addictions to ing patients. with The record shows sex Tillery, a practices. their medical Cliff that of Dr. Hicks trusted the assurances pri was Dr. Hicks’s psychologist, licensed that therapists both of these and believed the of his mary therapist outset they the that elicited sexual disclosures Tillery at Talbott Marsh. coun treatment from him would not be revealed to the with Dr. Hicks in connection seled Moreover, Texas Board.28 his revelation and, initially subsequently, alcoholism Dr. of with occurred sex his sexual group therapy respect with after of signed Hicks the Board release Irons, Dr. a рsychiatrist addiction. with records, his Talbott Marsh treatment expertise therapy, in sex associated an was specifically he limited to his medical which regarding Dr. specifically to counsel Hicks 11, 1993, January records from October Tillery Dr. Irons and his sexual addiction. 3, 1994.29 special- Hicks determined that Dr. needed information, again reassured that accompanying his I 28. In an affidavit com- be purported of the information would released plaint, explained at- none Dr. anyone therapists that it would remain confi- mosphere en- and of trust in dential. couraged participate him to his treatment: 3-4, C, ¶¶ (affidavit of A at G Rl-l-Exhibit sessions, During therapy physi- Hicks, M.D.). Raymond D. staff Anchor and Talbott Marsh cians and of continually constantly per- and induced and propensities in his Tal- 29. Dr. Hicks’s sexual me to “take the risks of emotional suaded history and Marsh admission treatment bott place” honesty” a safe and to disclose "in Januaty gen- prior stated damaging personal very and information engaged erally in numerous af- regarding my past. representatives The as- prostitutes. His An- and sex with two fairs me, part individually as sured both and discharge during period, summaries chor sessions, therapy disclosures first for a cardiac assessment and part would of a "code of trust” and not Marsh, for transfer to Talbott show second anyone particularly redisclosed not diagnoses of and nicotine addictions alcohol to a state medical board. depression. It was not until as well as after 3, 1994, January when with Dr. his sessions repeated upon Based these numerous began, sex Dr. Hicks revealed his Irons physicians and staff of assurances patients, primary of the Tex- concern Marsh, upon based and Talbott upon receipt Anchor his Talbott as Board records, confidentiality I knew to standards of order manifested its physician, practice governing between a I did after exist Dr. Hicks’s medical very personal recovery pro- open up completing Talbott Marsh reveal some information, per- gram, opposed relationships including information with re- Upon gard divulging this sonal life. to sexual issues. internal, important recognize that Dr. Board. It Marsh re- by Baylor signed completed sent and admitted to lease that Dr. Hicks Hicks was the treatment his by Talbott Marsh for Dr. Lubin and his Dr. Lu- assistant. alcohol addiction. This was the focus marking catego- bin’s vertical slashes all Board, records, which licensed him to the Texas including psychi- ries Texas, all practice medicine in until of his atric/psychological on the Talbott records, including Talbott Marsh his treat- release, Hicks’s limited addiction, ment for sexual were sent to designation, upon the direction relied Receipt Texas Board.30 and review of Perkins, by Carolyn the Talbott Marsh Hicks’s entire Talbott Marsh treatment coordinator, when she sent records caused the Texas Board to become Hicks’s entire Talbott addiction, spe- aware of Dr. Hicks’s sexual April records to the Texas Board on cifically, patients. his sex with This reve- *14 lation in the Texas Board’s order resulted purportedly Dr. Lubin specially that Dr. narrowly circumscribed knowledgeable regarding state li- medical and, practice ultimately, medical foreclosed and, censing ironically, boards he not ability practice proximate his to medicine allowed Talbott Marsh to disclose his own to home. the psychiatrist-pa- his Given sexual addiction treatment records his psychologist-patient privileges tient and state medical he patient board when was a case, operative that are this we must Nevertheless, there. there is no evidence January decide whether the Talbott Marsh in the record that Dr. Lubin ever reviewed 3, 1994, medical signed by records release Dr. Hicks’s medical if they records see lawfully Dr. authority Hicks was valid contained sexual sensitive disclosures re- records, send of his including all treatment lated therapy counseling sessions
his psychosexual therapy, to the Texas he before made vertical slashes Board. indicating Talbott Marsh release that all of sought Dr. Hicks the advice of Dr. Dr. Hicks’s Talbott Marsh treatment rec- Lubin, the Talbott Marsh staff member were ords to be sent to the Board. Texas specialized physician who in counseling pa Furthermore, as of Continuing Director tients in recovery, addiction to how to Marsh, at Care Talbott con- maintained respond to the letters from Texas tact with Dr. Hicks in psychosexual his requesting Board his treatment records. Marsh, Charter, therapy at Talbott release, On the Texas Board Dr. Hicks thereafter. Dr. Lubin knew that well only handwrote he authorized his Tal- Talbott Marsh release was valid for one bott Marsh treatment from records Octo year patient from the date that a it signed 11, 1993, ber the date of his admission and that a could revoke his release there, 3, 1994, January until date Yet, of treatment records at time. release, he signed the to be sent. Those there is no Dr. in- evidence that Lubin not records do disclose Dr. Hicks’s sexual formed Dr. Hicks of sensitivity patients encounters with because psy- his disclosure of sexual addiction to a state fact, therapy, which chosexual elicited that licensing medical board at the time that had not commenced that time. Dr. Hicks signed the blank release form explained thereafter,
Dr. Lubin Dr. Hicks that for his treatment the Talbott therapy Marsh records coordinator Dr. when Irons com- would need a Talbott Marsh release to menced later in January, or when he send his treatment to the Texas was transferred from Talbott Marsh to 15, 1993, requesting entering 30. The December letter for ed him treatment for his alcohol- Dr. Hicks's Talbott Marsh treatment records specific questions relating ism but also asked Pease, investigating from Sharon who supra to his alcohol use. See note 7. Board, case for Texas not commend- practice medical Dr. Hicks’s terminated sexual of his further Charter restoring it. instead from discharge final to his prior addiction junctures, these anyAt Talbott Marsh. letters response innocuous Lubin’s Dr. January have revoked could Board, the second one the Texas another, more signed presence, in Dr. Hick’s which was dictated Dr. believing Talbott specific him into lulled further in com- expert releasе. Lubin, Talbott Marsh patients physician between munications had a confiden- Dr. Significantly, boards, licensing their state Tillery relationship with fiduciary tial he was at him while protecting psychosexual regarding Irons Dr. or his recovery therapy that his Marsh and by Talbott was breached therapy that jeopardized not be would medical license Dr. and, Lubin. specifically, Tal- advice. The Dr. Lubin’s by following encounters with his sexual Hicks disclosed for se- plainly allowed Marsh release bott privileged protected treatment records categories lection psyehiat- law of Georgia context under rec- request pursuant to be sent therapy. counseling and ric/psychological Yet, that all of designated Lubin ords. therapists these He had assurances rec- Hicks’s Talbott reve- sex-with-patients his consensual Board the Texas sent to ords be sent would lation *15 Hicks that he to Dr. explaining without this information divulging prior to Board records treatment particular specify could purpose the context for therapy in the election. to allowing him make generally. addiction his sexual overcoming Marsh Hicks’s Talbott Although Dr. suffi- that he was determined therapists dealing in help that he needed Realizing medical to his to return ciently recovered desiring compulsion with his sexual pre- physician patients many as practice Talbott he was at while treatment this Lubin, with- him, had done like Dr. ceding addiction, Hicks Dr. for his alcohol Marsh Talbott of their of all out full disclosure as Dr. Lubin’s counsel sought specifically records, ulti- Dr. Hicks Marsh treatment to Texas respond should to how he The opportunity. mately was denied treatment for his request Board’s which patients, his sex with disclosure of psychosexual his commencing to prior psychiatric/psy- privileged in his surfaced alcohol his severe Because therapy. Till- Dr. Irons and therapy with chological addiction, diagnosed Dr. Hicks previ- returning his his ery, prevented in his impairment cognitive having some effect, Talbott In practice. ous un- In addition functioning. intellectual to ob- failure Marsh, through Dr. Lubin’s al- his for detoxification dergoing chemical Dr. consent tain an informed medicinal treatment addiction cohol Marsh his Talbott all of for release suscepti- Hicks was depression, his Dr. for records, pur- undermined he was concerned because ble to direction therapy, to which recovery pose of license, his medical the threat about sincere, life of his year a had devoted his livelihood. necеssary for which was work. cooperative Tal- that he believed He testified Dr. Lubin jury concluded The cover the same would release bott Marsh fiduciary a had breached Talbott Marsh on the designated that he period time and that Dr. Hicks they owed to duty that Hicks, the vul- release. Texas Board the Talbott signature on merely his alcoholic, Talbott recovering nerable completed form, subsequently release therapists’ on his relied patient, a assistant, and his Dr. Lubin expertise Dr. Lubin’s and on assurances re- rights Hicks’s waiver of Dr. knowing respect his advice and followed release of release, ultimately garding which Talbott Marsh 1242 Board. records to Texas denial for a new motion trial for
Therefore, the of Dr. Tal- an abuse of discretion.” Hicks’s Richards v. Corp., 21 bott Marsh treatment based a Michelin Tire F.3d (11th Cir.1994). “Motions for new complete form that he did not and about trial on prejudicial the basis erroneous and fully jury which he was not informed as to its instructions are committed consequences, Drawing was unauthorized. discre- tion of the all trial court and reviewed reasonable inferences favor of Hicks, ascertain whether there ample we find evidence in this rec- has been clear verdict, abuse of that jury’s Christоpher ord to discretion.” v. support Laboratories, Cutter shows careful consideration of the value of F.3d (11th Cir.1995). Dr. Hicks’s loss of his livelihood as re- award, in the flected an amount consider- trial, Prior to filed motion in ably damages requested than the less limine seeking exclusion of reference complaint.31 to the fact that his treatment records from Charter were sent the Texas Board. B. Motion New Trial granted The district judge the motion be- Appellants alternatively argue that cause Talbott Marsh’s sending Hicks’s judge improperly the district their denied entire treatment records to motion new judge trial because the Board was not remote in time from his incorrectly excluded evidence relevant injuries. alleged also judge deter- and, damages consequently, causation and that, mined harm alleged because jury did not instruct on proximate the foreseeable result of Talbott Marsh’s argument cause. This relates to Charter’s conduct, proximate no cause issue was release of Dr. that, raised. The judge reasoned when containing substantially same informa there are two separate of a causes-in-fact addiction, regarding tion his sexual includ injury, single either of which alone would *16 ing patients, sex with to the Texas Board harm, have sufficed to alleged cause the it pursuant subpoena.32 to a grant To have inherently permit is to guilty unfair “both trial, appellants’ ed a motion for new the parties to liability by avoid pointing to judge district would had to de have have each other.” R4-53-2. judge The con- that, contrary great termined “the verdict to the cluded since Talbott could not weight evidence; we of the will the escape liability by claiming reverse that Charter’s Appellants appeal stringent also on regulations contend These federal include they § are O.C.G.A. immune under 24-9-44. application using for disclosure a fictitious statute, however, inapplicable only This name, is not adequate patient, notice to the a closed sup- because we conclude ports the evidence judicial judicial hearing, a determination that jury's the verdict that there was no valid good cause to order exists disclosure because by release of treatment executed records no other feasible method is available for ob- Hicks but also because the statute deals taining the information and the need for dis- disclosure,” "limited consent to a de- term outweighs injury closure 24-9-41(5) § "proper fined in mean authо- physician-patient relationship, the and an or- given specific purpose rization relat- ... for a delineating parts patient’s der the of the rec- person’s ed to such health or related such limiting ords to be disclosed well as the person’s application for insurance or ben- like persons to whom disclosure is See made. id. 24-9-41(5). § efits.” O.C.G.A. Dr. Hides recognized: judge The district is "It clear that applying was neither for insurance nor deriv- Hospital negligent complying Charter was in ing any healthcare benefits from the Texas subpoena awith that was deficient numer- case, Georgia Board. On the facts of this the respects, including ous the that it fact immunity unavailing appellants. statute is unaccompanied required by authorizing the 32. The subpoena by obtained the order, Texas Board plaintiff court the fact for Dr. Hicks’s Charter treatment records did subpoe- never afforded advance notice of the 2.64, comply § not designed with 42 C.F.R. opportunity or an na to be heard on the protect patients when disclosure of treatment matter.” R4-53-2n.l. sought records purposes. is for noncriminal
1243 anticipated, apprehended, or “intervening an cause” of Dr. been fore- conduct fact re- injuries, by Hicks’s “the that Charter the original wrong-doer, seen is irrelevant leased plaintiffs broken, not causal connection is Id. that admis- this action.” He also noted original wrong-doer is for responsible all subsequent re- of evidence about sion consequences resulting confuse the records would lease Charter intervening act.” unfairly prejudice issues and (citation Harrison, 510 S.E.2d 346 omit- Consequently, jury was not case. ted). charged proximate intervening cause. Dr. Hicks’s Talbott Marsh treat proximate cause exists a
“[W]hether ment records were sent to the Texas question of law and given case is mixed 1994, April approximately Board on Gynecology fact.” Atlanta Obstetrics & eleven weeks Charter records before P.A., (Ga.1990). Group, 17 S.E.2d to a pursuant subpoena sent obtained proximate what “Although amounts by The the Texas Board. Texas Board’s it undeniably jury question, cause will is quotes liberally order from Dr. Hicks’s by court as a matter of be determined Talbott Marsh treatment records. di undisputed law in cases.” plain and rect connection between unauthorized Wills, McAuley v. 303 S.E.2d 260-61 confidential, of Dr. Hicks’s Jenkins, (Ga.1983); v. see Harrison Marsh treatment records and the Texas (en banc) (Ga.Ct.App.1998) S.E.2d Board order is obvious. Talbott Marsh that “there is limit” to the (recognizing esсape liability breaching cannot jury’s cause an determining proximate duty confidentiality that it owed Dr. sustained, injury a case where regarding by uncontroverted, the facts are obvious and tortfeasor, later Char shifting blame to a it). “The decision judge and the decides ter. appel may judge made the trial if persons late court reasonable could Furthermore, not sup- the evidence does as to both the relevant facts and differ intervening port the introduction an legal stan application evaluative cause, it Marsh that when was Talbott (such legal concept dards as the of ‘fore Dr. Hicks’s effectively terminated the facts.” Obstet seeability’) to Atlanta career its unauthorized release of his *17 Gynecology Group, rics & 398 S.E.2d at psycho- disclosing 17; Corp. & Metal v. see Western Stone Indeed, therapy. Texas sexual Board Jones, (Ga.Ct.App. 348 S.E.2d requested not would have 1986) banc) (en (“[W]here jury can if Talbott Charter conclusion, draw one but reasonable to the Board his Marsh had sent plain, palpable, undisputed issue is revealing his sexual psychosexual therapy, law.”). ruled as a matter of upon should be patients showing encounters if, rule is general “While the subse specialized transfer to Charter more an quently original wrongful negli Significantly, addiction trеatment. sexual intervened, act, has gent a new cause fiduciary breach of its Talbott Marsh’s itself stand the cause of sufficient to duty confidentiality to Dr. Hicks not misfortune, the former must be con to the Texas Board’s foreseeable led remote, as too still if the charac sidered request for Dr. Hicks’s Charter treatment intervening claimed to ter of the act but also those records sub- the origi break the connection between to his revela- stantively identical sexual in wrongful subsequent nal act and the psychiatric/psy- tions in his Talbott jury probable was such that its or natu for his sexual reasonably chological ral treatment records consequences could have addiction.33 not abuse his discretion not instructing jury on proximate or intervening cause As the district judge explained: “[B]e- in accordance with his ruling on the motion cause defendants admit Charter re- in limine. leased the ‘same information’ to the state released, board that defendants it is clear that all of the harm sustained plaintiff III. CONCLUSION would have resulted defendants’ con- In appeal, this appellants challenge the alone, regardless duct of Charter’s later jury award Dr. Hicks for breach of the acts.” injection R5-78-4. The of the duty of confidentiality rеgarding his Tal- Charter release of Dr. Hicks’s treatment Marsh, bott psychosexual treatment rec- records into the case would have served ords. As we explained, have the jury’s only to mislead and jury. confuse the Ap- verdict based on unauthorized release is
pellants had a legal duty to protect supported by evidence, and the mo- confidentiality of Dr. Hicks’s Talbott tions for judgment as a matter of law and Marsh treatment records. See O.C.G.A. for a new trial properly were 7—166(a)(1). § denied. Ac- As the judge district 37— cordingly, jury verdict is AFFIRMED. concluded: “The fortuity of Charter Hos-' pital’s subsequent incompetence simply
irrelevant” liability BRIGHT, Talbott Marsh Senior Judge, Circuit concurs and Dr. Lubin. R5-78-3. The judge did in the result.
33. There is no evidence in the record that therapy; parties and the represent do not oth- Hicks made new different disclosures erwise. regarding his sexual addiction or sex with psychosexual in his therapy Charter than did in psychosexual Talbott Marsh *18 A
APPENDIX *20 B
APPENDIX
APPENDIX C notes See R7- April 1994. on Board Texas a made in was representation 14. The same 223; also testified She Exhibit Douglas Tal- Joint by G. therapy Dr. session group of the covering all marks Marsh: slash bott, vertical of Talbott director founder pa a relating to categories of information support ther- group inpatient During one treat entire indicated records December tient's late apy session were patient particular discussing a certain records group was ment inpatient entity. regarding specified individual physician’s situation be sent Texas problems and the issues of sexual disclosure R7-218. See Texas Board if the would encounter regularly sought the advice of Dr. Lubin Board, Texas since its interest was in his and medical supervisors records regarding treatment for alcoholism.17 R6-73. particular treatment records to send Pursuant to a subpoena by obtained pursuant a request patient’s rec- Board, Charter, Texas with no notice to ords, she consulted no one before sending Hicks, all sent of his psychosexual Dr. Hicks’s entire treatment records to the treatment records from that facility to the Texas that, Board. She testified because Texas Board approximately eleven weeks 3, 1994, the January signed by after Talbott Marsh had sent its records Lubin member, staff witnessing for Dr. Hicks.18 Similar to the Talbott she “assumfed]” that he had discussed the Marsh records relating to Dr. Hicks’s release with Dr. Hicks.16 R7-215. for his psychosexual disorder, Hicks was not informed Perkins or the Charter records disclosed that Dr. anyone at Talbott Marsh that his entire Hicks’s sexual had addiction included sex records had been sent to the with patients. Following its investigation Texas Board. into Dr. professional conduct, the After receiving all of Dr. Hicks’s Talbott Texas Board issued August 1994, an records, Sharon Pease visited him order specifying the conditions of prac- his while he was at Charter for treatment of tice of medicine in Texas to which Dr. his sexual addiction. She informed him agreed. These restrictive terms in- that the Texas Board was aware that he cluded limiting practice to institutional engaged had in sex with patients, which settings, being monitored by a physician revealed his Talbott Marsh treat- acceptable to Board, the Texas requiring a ment records. Dr. Hicks was “totally chaperone to be present for examination of stunned” because he understood from Dr. all patients, female and submitting a copy Irons and Tillery that psychosexual of the order to all hospitals in which he records would not be transmitted to the had privileges.19 Dr. Hicks’s signing this 16. Perkins even testified that she recalled required sign a re-entry contract copying specific page of Dr. Hicks’s he, which his referring employer/physician, that, among stated psychosocial stres- and his Talbott therapists agreed to sors, possible were job loss of his and medical the manner in which he would conduct his Yet, license. See R7-209. she consulted no practice. medical This re-entry contract not one sending before all of his Talbott Marsh many contained of the same terms as Board, which Board, that of the Texas such as continuing licensed practice Dr. Hicks to medicine. treatment for his addictions and mandating that present monitor for all ex- 17. After learning from Pease that the Texas interactions, aminations and but also went Board had all of his Anchor/Talbott further requiring Dr. Hicks to establish a network, recovery wife, including his pro- requested Anchor and pro- Talbott Marsh to director, gram monitor, and sexual addiction copy duce a of documents they therapist. The first condition of re-entiy sent to Board, the Texas State Medical contract was Dr. Hicks’s admission that he my surprise, the medical file reflected suffers psychosexual from a disorder and his communications between cians and physi- me and my commitment to specific abstain from behav- during counselors the five month personal iors in his professional life. His period I had been at Anchor and Talbott Plan, Re-Entry Professional organized in addition, Marsh. In the documents includ- phases, as Relapse well as a Prevention Plan ed communications between me my during formulated Dr. Hicks’s residence family family and the therapist disclosed