In Re Donald Pebsworth, a Witness Before the Special January 1982 Grand Jury. Appeal of Dr. Kersey Antia
705 F.2d 261
7th Cir.
1983
Check Treatment

*1 ESCHBACH, Circuit Before WOOD GRAY, Judge.* District Judges, and Senior WOOD, Jr., Circuit HARLINGTON Judge. court’s appeal from the district

This is an government’s petition granting order * Gray, by designation. sitting William Senior District The Honorable P. California, of the Central District of

262 subpoena ties, insurers,

enforce by Special a issued the the medical waived any privi- might lege arguably existed. Jury 1982 in Grand connection its in- with vestigation possible of criminal misconduct We note at the outset that Rule 501 by an Illinois psychotherapist, Kersey Dr. of Federal provides the Rules of Evidence Antia, in fraudulently obtaining reimburse- privilege that the witness non-diver ments companies from medical insurance “shall be the sity governed by princi cases the through ples they may the of common law submission of psychiatric false interpreted by the courts of the United records. care That com- subpoena light experi the of reason Pebsworth, manded Donald authoriz- the exceptions Thus the contours and ence.” of representative ed of Blue Cross/Blue Shield are a matter of privileges clearly fed Illinois, of produce to law; principles eral common state-created [a]ny all records Dr. concerning Ker- do of not control. United States sey [sic], Anita Provider Number 776, Craig, 773, v. aff’d en banc 0001672026, 1, from January to the 1978 curiam, (7th per Cir.1976). 537 F.2d 957 present. records to but Such include not Thus, even Illinois though the Mental records, physician limited to service claim and Developmental Health Disabilities Con records, checks, submission bank drafts fidentiality Act prevents by redisclosure in and other records of payment. companies surance of kind of informa the sought patients’ tion here without the writ include, alia, The requested records inter consent, Ill.Rev.Stat., 806, ten ch. 91x/2§ the names of Dr. patients, of some Antia’s a provides any agreement purport visits, and, cases, listing of their the some void, ing requirement waive this to id. at patient’s diagnosis. 814, we are required to independently § Blue Cross and Antia as intervenor- whether the analyze authorization appellant government’s the opposed petition of to the insurance carriers ef on the basis that the of production the confidentiality fected waiver of with re targeted would the psy- materials violate special spect to limited and uses for they government. which chotherapist-patient established Develop- Illinois Mental Health and An express waiver is “the inten Act, mental Disabilities Confidentiality tional, voluntary relinquishment of a known Rev.Stat., (1981), ch. 91V2 801 et seq. §§ right.” Dictionary (5th Black’s Law 1417 law, common federal Constitution. ed.). of principles Well-settled testimonial The district while discussing also privilege compel the conclusion claim, arguable psychotherapist-patient substantive merits of the privilege billing these specific as to kinds that, assuming held even such a arguendo intentionally administrative records was existed, it through was waived knowingly relinquished through pa patients’ explicit authorization of disclosure publicizing aspect tients’ assent to such records medical insurance carri- procedure. the reimbursement and claims ers, consequent expectation and their 556, 535 Radetsky, United States F.2d character confidential of the records denied, (10th Cir.), 14 429 569 n. cert. necessarily compromised pursuant 68, (1976); 97 S.Ct. 50 L.Ed.2d 81 process. According- to the reimbursement Texas, Co. of Leach Millers Life Ins. 400 ly, the district court ordered Cross to Blue (5th Cir.1968); 182 Lora v. Board F.2d documents, produce the and subsequently York, New City of Education of denied Dr. Antia’s to re- appellant motion (E.D.N.Y.1977); Jones v. F.R.D. question consider. need not reach We America, Life Prudential Ins. Co. of the existence or extent of asserted 476, 483 McCor (D.C.Ct.App.1976); A.2d we af- psychotherapist-patient privilege, for Evidence, mick, (2d ed.); n. 55 103 & § firm the court’s district determination Evidence, 7(a) (McNaughton Wigmore, § explicit of disclo- authorization 1961). to disclosure of assenting Rev. documents, par- sure records third a reasonable requested these pro- . .. significantly would no doubt be aware that routine students seems more would re- than not.... evaluation cessing probable of reimbursement claims [T]he ago in use time quire brought procedures up these records to be into short employees provided anonymous explicitly hands of numerous access confidential we large corporation. parties While third to whom the within a data differently lege arguably well have does not extend.... might decided [T]he *3 widely in- fact that this is so dis- subpoena very information under the data profiles pa- suggests volved detailed of students psychological seminated that and subjec- therapy parents tients or substantive of their could harbor little accounts sessions, expectation the subse- The secrecy. it cannot said that tive of addi- quent anonymous contemplated of data fragmentary disclosure tional disclosure as part realistically is involved here as the insurance this case cannot of in found the company’s legal assisting any disappointment duties in a federal to involve of con- investigation the beyond anticipations criminal would be scious of the communicants. contemplation patients’ of the waiver. reluctant Id. at 585. We a fortiori artificially scope patients’ restrict the of the by interpretation Our has been embraced where, here, waiver waiver that was in a example, numerous other courts. For the records are explicit, administrative indistinguishable involving a factually case nature, and rather than substantive in the investigation physician’s federal sub into investigation success of criminal the claims, Tenth mission of false insurance system, care psychotherapeutic abuse of the grand jury proper Circuit held that was action, is just a civil at voluntary and not ly subpoena entitled to service records stake. Also see Jones v. Prudential Life forms, re arguable diagnosis any that America, 476, (D.C. A.2d 483 Ins. Co. of 388 upon physician-patient privilege liance (waiver in Ct.App.1976) privilege of civil patients’ explicit was con prevented patient where to disclosure action consented of for the sent to disclosure these records company); of information insurance of Medicare reimbursement. Unit purpose v. Millers Life Ins. Co. of Texas Leach ed 559 n. Radetsky, States McCormick, & n. (same); Evidence 103 55 § denied, (10th Cir.), 14 cert. 429 97 ed.) (waiver of (2d doctor-patient (1976).1 Analogous 50 L.Ed.2d 81 S.Ct. poli through disclosure clause in insurance ly, invoking specific not term while effectual; that waiv cy holding valid and is “waiver,” the court in Lora v. Board not extend disclosure er does to in-court York, City 74 Education of of New interpretation” described as “eccentric that J.), (E.D.N.Y.1977) (Weinstein, 565 F.R.D. Ev waiver); Wigmore, “emasculate” receiving psychological held that students idence, 7(a) (McNaughton 1961) Rev. § effectively re therapy foregone had their valid). waiver of (contractual detailed, sub any protection liance on psychological stantive records their argua- finding that a waiver of Our a civil personal problems from disclosure psychotherapist-patient privilege exists ble rec action, through knowledge that here specific present in the circumstances is therapy for routinely ords of that were harsh is authorized indeed less than warded under school to other regulations regime governing waiver accepted ob system employees. school As the court attorney- lege. In connection with served, doctor-pa- client, husband-wife, usual virtually any element privilege, example, A crucial of the tient privileged If a a communica- communications intent. makes See, it to expecting parties privilege. tion be disclosed to other to third vitiates the McCormick, Evidence, 93 & n. persons privilege. ... there is That 15 e.g., no § expectation attorney-client such an corn- (partial was entertained disclosure of issue, Radetsky disposition court in since it was While the noted additional- waiver did, possessed to, ly power waiver” that to waive entitled find a “broad law, law. See United physician-patient privilege under state matter of federal common Craig, certainly that fact was crucial to the court’s 528 F.2d at 776. not munication waiver); Wigmore, and, acts as full returned, if an indictment is the trial Evidence, McCormick, (same); Evi- scrupulous § will take measures to en- dence, (marital ap- § does not sure there occurs no unnecessary dis- ply to conversations made even inadvertent- diagnoses.” closure of names or ly presence parties); McCormick, third join I Accordingly, in the affirmance of the (doctor-patient Evidence consulta- order requiring subpoena. § adherence tions made in presence parties of third not However, I do not share Wood’s Here, privileged). we need reach not so patients’ explicit view “... autho- far, but merely hold that such limited infor- requested rization of disclosure of the rec- mation as is present longer here was no insurers, medical parties, ords to third protected (if, indeed, was) it ever view any privilege might arguably waived explicit authorization of disclo- have existed.” to me It seems sure and easily anticipatable impor- traditional waiver doctrines are inappropri- tant purposes which infor- disclosed *4 ate in context of medical present-day mation is now to be put. plans insurance. Such insurance Dr. strenuously argues Antia that gained national and exist prevalence to en- result of our holding put waiver will be to doctor-patient courage creation of rela- prospective to psychotherapy patients tionships necessary protect to per- where a unconscionable Hobson’s either physical choice of re- well-being. son’s and mental ceiving Moreover, no or receiving designed treatment treatment they are to lessen the only at of making that, cost their public considerable financial burdens in the trust, however, illness. grand We insurance, many that the absence force jury, and, investigative bodies, related gamble an to their people with health. Since returned, indictment is the trial will the doctor-patient privilege exists to en- take scrupulous measures to courage protect ensure such them relationships there unnecessary made, occurs no they when behind health policies or diagnoses. names Additionally, privilege go insurance and the hand in already observed, we have unpleas- this hand. ant large dilemma is to a degree already Thorough reliance the confidential upon system inherent in the party of third medi- relationship particularly with the is doctor reimbursement, cal patients were important psychiatric patient, to a because aware that upon substantial intrusion very the problem nature of privacy was entailed in their to the consent together. the two brings Such processing and verification of informa- reluctance, with may, recognize practi- tion at issue numerous in a employees necessity identity cal for disclosure of his large, anonymous corporation. We do not perhaps other information to the insur- believe very finding that our limited no ance carrier. But it means follows application waiver through of traditional may because this he deemed to waiver principles will radical- have consented to involved in a become ly upset patient expectations discourage or It is investigation. criminal well estab- the procurement of psychotherapeutic care. that a a client may lished or con- otherwise, sent, tacitly or that a secretary Affirmed. may exposed or a or a paralegal nurse GRAY, WILLIAM P. District disclosures, Senior his destruction without Judge, concurring. confidentiality. relevant This practical necessity. also stems from I think agree I my colleagues with dis- with respect the same should be true trict court grand jury engaged that the personnel. medical insurance importance matter of it should receive C.I.R., (7th the information that reasonably Ryan it 568 F.2d Cir.1977), needs pertaining patients of An- this court “The intention of said: tia. I join also with the Evi- Congress enacting Wood his Rule [of expression of “.. . ‘recognition confidence that dence was that Code] grand bodies, jury, investigative related lege relationship based on a confidential privileges and other should be determined a case-by-case

on basis.’ 1974 U.S.Code Admin.News,

Cong. & p. See United Allery, (8th

Cir.1975). In making case-by-case de-

termination, helpful weigh it is the need against

for truth the importance of the

relationship policy sought or to be furthered privilege, likelihood that

recognition of pro- will in fact

tect relationship setting in the factual that,

of the case.” I believe under case,

circumstances of this a weighing of

the factors requires that the valid

here give way concerned to the need for

most, all, perhaps information

sought. But I would commend to the trial

judge scrupulous that the “... measures to

ensure that there occurs no unnecessary

disclosure of diagnoses names or

...” respect be considered with to the sub- material,

poenaed well as after re-

sulting indictment. Clark, CLARK, June Roosevelt

Delores infants, by Clark, Clark, Sharon friend, Clark Roosevelt and next father infant, by Moore, an Lamar and Ethel friend, Mrs. Dazzle and next her mother Moore, Appellants,

Mott EDUCATION OF

The BOARD OF DISTRICT, LITTLE ROCK SCHOOL President; Matson, Jr., Everett Russell McDonald, Tucker, Jr., John Har- W.T. Coates, rell, K. Bass and James Warren Rock Dis- of the Little School

Directors trict, Appellees. Friday, Eldredge by Christopher & Clark No. 82-1834. Heller, Rock, Ark., Bd. of appellee Little for Educ. of Little Rock Dist. School Appeals,

United Court Circuit. Eighth Walker, Ralph Washington, John W. Lit- 11, 1983. Rock, Ark., Jan. Greenberg, Submitted tle James M. Jack Nabrit, III, Lee, Bill Lann Theodore M. 31, 1983. Decided March Branton, Jr., Shaw, City, New York W.A. Rehearing En Banc Rehearing and D.C., Washington, appellants. 9, 1983. June Denied HEANEY, AR-

Before- BRIGHT and NOLD, Judges. Circuit