The Psychiatrist-Patient Privilege and Third-Party Payers: Commonwealth v. Kobrin

See Smith P.M. , The Physician-Patient, Psychotherapist-Patient, and Related Privileges, in Testimonial Privileges (ed. Stone S. & Liebman R. ) (Shepard's/McGraw-Hill, Colorado Springs, Colo., 1983), at 379–80 (collecting statutes). Some statutes apply to all physicians, while some cover psychologists as well as medical doctors. Much of the discussion in this article thus applies to nonpsychiatrists, though some differences are noted below with respect to nonpsychiatrist physicians.

Most statutes cover, at a minimum, all patient communications, any information learned by the psychiatrist in the course of diagnosis or treatment, and the psychiatrist's conclusions, diagnoses, and treatment. Exceptions to the privilege differ widely from state to state. The most common is for patients who place their mental state in issue as litigants, but some states also recognize exceptions for (among others) criminal proceedings, commitment proceedings, will contests, and child custody proceedings. See Smith, supra note 1, at 390-402.

Psychiatrists owe an ethical duty of confidentiality toward their patients. See Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry (American Psychiatric Association, Washington, D.C., 1984), §4. Legal enforcement of the duty of confidentiality is becoming more widespread. See Alberts v. Devine, 395 Mass. 59 (1985).

In some states, such as Hawaii, Medicaid recipients execute a general release of information. See Hawaii Psychiatric Society v. Ariyoshi, 481 F.Supp. 1028, 1045 (D. Haw. 1979). Medicare recipients similarly execute a general release. See Medicare and Medicaid Guide (Commerce Clearing House, Chicago, 1983) § 10,268, at 4161–62 (Medicare form: HCFA-1490S—Patient's Request for Medicare Payment).

See, e.g., In re Zuniga, 714 F.2d 632 (6th Cir. 1983), cert. denied, 104 S.Ct. 426 (1983); In re Pebsworth, 705 F.2d 261 (7th Cir. 1983); Hawaii Psychiatric Society v. Ariyoshi, 481 F.Supp. 1028 (D. Haw. 1979); Henry v. Lewis, 478 N.Y.S.2d 263 (N.Y. App. 1984); Camperlengo v. Blum, 56 N.Y.2d 251 (1982); In re Grand Jury Investigation, 441 A.2d 525 (R.I. 1982); Department of Social and Health Services v. Partlow, 601 P.2d 520 (Wash. 1979).

Commonwealth v. Kobrin, 395 Mass. 284 (1985).

In re Grand Jury Subpoena, No. 23959-60N (N.Y. App. Div., 1st Dept., Nov. 14, 1985). This case is currently on appeal to the New York Court of Appeals.

More specifically, the allegations concerned Massachusett's Medicaid False Claim Act, St. 1980, c. 524, §3, codified at M.G.L.c. 118E, §§21A-21G, which outlaws several forms of Medicaid fraud, most notably the making of false claims for payment. Federal law similarly outlaws such Medicaid fraud (42 U.S.C. §1396h [1982]).

The Massachusetts privilege statute, with exceptions not applicable in Dr. Kobrin's case, broadly protects “any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition.” The statute defines “communications” to include “conversations, correspondence, actions and occurrences relating to diagnosis or treatment before, during or after institutionalization, regardless of the patient's awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing” (M.G.L.c. 233, §20B) (1984).

42 U.S.C. §1396a(a)(27). M.G.L.c. 118E, §20, similarly requires that Medicaid providers “maintain proof, subject to audit, of the actual deliverance of services and goods to recipients for which bills are submitted.” Federal and state regulations that implement the record-keeping and disclosure statutes contain essentially the same standards of disclosure: 42 C.F.R. §431.107(b) (1984); 106 Code Mass. Regs. §§433.425(D) (1985), 450.205(A) (1983).

The doctor and his patients also argued that the records were protected by a constitutional right to privacy. The court addressed this argument by simply noting that constitutional standards were satisfied by the disclosure standards it articulated in interpreting the statutes (Kobrin, supra note 6, at 293).

Id. at 291.

Id. at 290-91.

Id. at 292.

Id. at n. 15.

Id. at 294.

Id. at 295 n. 18.

Id. at 294-95.

Id. at 294.

In re Grand Jury Subpoena, supra note 7.

Kobrin, supra note 6, at 292.

See 106 Code Mass. Regs. §433.427 (listing categories of Medicaid reimbursement).