Opinion
Case Number: 1:19mc00003
2019-09-16
IN RE: GRAND JURY INVESTIGATION
MEMORANDUM OPINION
Pamela Meade Sargent, United States Magistrate Judge
This grand jury matter is before the court at the request of the Government to conduct an ex parte in camera review of a subset of the patient records seized in the search of a psychiatrist's office, (Request For In Camera Proceeding, (Docket Item No. 1) ("Request")). According to the Request, the Government had a separate "taint team" review the seized records to determine which, if any, might be protected by the psychotherapist-patient privilege recognized by the U.S. Supreme Court in Jaffee v. Redmond , 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). The taint team has redacted certain information contained in these patient records as potentially privileged information. The Government now seeks a determination from the court that none of the redacted information is covered by the psychotherapist-patient privilege. Based on the arguments and representations of the Government, and the court's in camera ex parte review of a subset of these patient files, the court finds that these records are not the type of confidential communications between psychotherapist and patient that the Jaffee opinion intended to protect from disclosure.
I. Facts and Procedural Background
Several years ago, this court, based on a finding of probable cause, issued a search warrant allowing federal law enforcement officers to search the premises of a psychiatrist's office for evidence of violations of 21 U.S.C. §§ 841, 846, unlawful distribution of controlled substances and conspiracy to unlawfully distribute controlled substances, and 18 U.S.C. §§ 1347, 1349, executing or attempting to execute a scheme to defraud any health care benefit program, ("Search Warrant"). In support of its Request, the Government submitted the Search Warrant and affidavit attached to the application for the Search Warrant. Also in support of the Request, the Government submitted copies of the medical records at issue for a subset of 15 of these patients. The taint team has provided the court with the contents of each redaction it made of potentially privileged material in the records of these patients.
Patient records for patients to whom the psychiatrist had issued a prescription for a controlled substance were among the items the Search Warrant authorized the executing agents to seize. An attachment to the affidavit attached to the application for Search Warrant specifically listed 152 patients by name, to each of whom the psychiatrist had issued a prescription for a controlled substance. Another attachment listed 56 of these patients who had been investigated or indicted for drug offenses. The affidavit attached to the application for the Search Warrant also provided evidence of the following to the court:
1. Over the past decade, the Southwest Virginia Drug Task Force, ("DTF"), had received complaints that the psychiatrist had prescribed a disproportionate number of prescriptions for controlled substances, particularly prescriptions for Xanax, Ritalin and Adderall, that were then being illegally distributed. The DTF also had received numerous complaints from the families of patients who had become addicted to controlled substances and had illegally distributed controlled substances after becoming a patient of the psychiatrist;
2. The psychiatrist had prescribed Adderall and Ritalin, controlled substances used to treat attention-deficit disorder, to patients who requested the medication to enable them to stay awake, but who also specifically denied any difficulty concentrating; and
3. The psychiatrist routinely saw 60 to 85 patients a day and would routinely bill for 15-minute visits, although visits might last only two minutes.
The court has reviewed each of the medical records tendered, as well as the redacted information. Based on this review, it appears that most of the redacted information contains a few words summarizing the symptoms, signs or potential causes of mental health problems provided by patients in response to inquiries regarding the patients' chief complaints, presenting problems or histories of present illnesses. Most of the redacted information is contained on either computer-generated or handwritten check-box forms. All of the computer-generated forms that contain redacted chief complaints also contain sections for the psychiatrist to check to indicate the presence of various subjective mental health complaints voiced by the patient, as well as a section to record objective physical and mental health symptoms observed by the psychiatrist. Each of these forms also contains an "Assessment" section, which lists a diagnosis, and a "Plan" section, which contains notes concerning only the medication prescribed and the scheduling of return visits. These records contain no mention of any counseling or psychotherapy being provided to the patients. Many of the handwritten forms on which redactions have been made are entitled "Medication Management," and the check boxes are contained in a section entitled "Diagnostic/Behavioral Symptoms Observed And Functional Limitations." These records show the medications prescribed, but do not contain any mention of any counseling or psychotherapy being provided to the patients. These handwritten check-box forms contain a section entitled "Discussed/reiterated," which contains check boxes for "sleep and hygiene strategies," "participation in positive leisure & productive activities," "validated feelings," "utilized active listening and supportive counseling," "behavioral strategies to cope with suicidal thoughts," "vocational stressors" and "dietary modification and exercise to help with weight loss." Many of these forms have some of these boxes checked. Some of these forms have none of these boxes checked. The redacted paper records also include a few that are completely handwritten that contain more lengthy redacted statements from patients. Nonetheless, these records, too, contain no mention of any counseling or psychotherapy being provided. Many of these records show that medication was prescribed.
II. Analysis
The Government, in its Request, argues that the information redacted from the seized patient records by the taint team is not the type of information protected by the psychotherapist-patient privilege. The Government argues that the redacted information appears to be nonprivileged physician-patient disclosures made as part of a brief patient interview, including chief complaints for the patient visits. Furthermore, the Government argues that it needs access to complete unredacted patient files to provide the files to an expert for review to determine if the psychiatrist prescribed medication for legitimate medical purposes and within the scope of medical practice.
In federal court proceedings regarding federal law, including grand jury proceedings, questions of evidentiary privileges are determined by federal law. See FED. R. EVID. 501, 1101(c), (d)(2) ; United States v. Gillock , 445 U.S. 360, 367-68, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). The law of evidentiary privileges under the federal common law is not static. " Federal Rule of Evidence 501 provides that privileges in federal court are to be ‘governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.’ " United States v. Dunford , 148 F.3d 385, 390 (4th Cir. 1998). Federal law, to date, does not recognize a physician-patient privilege. See Whalen v. Roe , 429 U.S. 589, 602 n.28, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Federal law does, however, recognize a psychotherapist-patient privilege. See Jaffee , 518 U.S. 1, 116 S.Ct. 1923.
In Jaffee , the Supreme Court held that confidential communications between a licensed psychotherapist and patient in the course of diagnosis and treatment are protected from compelled disclosure in discovery in a civil case. See Jaffee , 518 U.S. at 15, 116 S.Ct. 1923. The Court specifically rejected recognizing any "balancing component" whereby "the promise of confidentiality [is] contingent upon ... the relative importance of the patient's interest in privacy and the evidentiary need for disclosure...." Jaffee , 518 U.S. at 17, 116 S.Ct. 1923. The Court, however, refused to "define the details of [the] new privilege[ ]," leaving that to be developed on "a case-by-case basis." Jaffee , 518 U.S. at 18, 116 S.Ct. 1923. The Court further stated: "Because this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would ‘govern all conceivable future questions in this area.’ " Jaffee , 518 U.S. at 18, 116 S.Ct. 1923 (quoting Upjohn Co. v. United States , 449 U.S. 383, 386, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ).
Unlike Jaffee, this case involves the application of the psychotherapist-patient privilege in the criminal context. See United States. v. Auster , 517 F.3d 312, 319 (5th Cir. 2008) ("public interest at stake in a criminal trial of any sort is substantial, more so than in a civil case like Jaffee "). In particular, the court in this matter is being asked to determine whether application of the privilege should prevent the full review by Government's counsel of patient records seized pursuant to the execution of a search warrant on a psychiatrist's office.
Based on the First Circuit's reasoning in In re Grand Jury Proceedings (Gregory P. Violette) , 183 F.3d 71 (1st Cir. 1999), this court previously has held that there is a crime-fraud exception to the psychotherapist-patient privilege in the criminal context. See In re Sealed Grand Jury Subpoenas , 810 F. Supp. 2d 788, 794 (W.D. Va. 2011). Based on a footnote in Jaffee , 518 U.S. at 18 n.19, 116 S.Ct. 1923, the Tenth Circuit has ruled that the psychotherapist-patient privilege does not prevent a psychotherapist from testifying about a threat made by a patient if "the threat was serious when it was uttered and ... its disclosure was the only means of averting harm...." United States v. Glass , 133 F.3d 1356, 1360 (10th Cir. 1998) ; but see United States v. Chase , 340 F.3d 978, 985-92 (9th Cir. 2003) (refusing to recognize a dangerous patient exception to psychotherapist-patient privilege); United States v. Hayes , 227 F.3d 578, 586 (6th Cir. 2000) (psychotherapist-patient privilege, if asserted by defendant, prevents testimony of psychotherapist in criminal proceedings against patient). Furthermore, the Supreme Court in Jaffee recognized that "[a]lthough it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way...." 518 U.S. at 18 n.19, 116 S.Ct. 1923. The Supreme Court also historically has recognized that evidentiary privileges must be "strictly construed," and may be recognized "only to the very limited extent that ... excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Trammel v. United States , 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (holding that, apart from confidential communications, witness spouse alone has privilege to refuse to testify adversely and may be neither compelled to testify nor foreclosed from testifying).
The Government in this case, however, does not urge that an exception to the privilege applies. Instead, the Government argues that the information redacted by the taint team is not the type of confidential communications the Supreme Court intended to protect by recognizing the psychotherapist-patient privilege. Based on my review of the subset of the records tendered to the court, I agree.
The Court's majority opinion in Jaffee clearly was premised on the belief that psychotherapy could be offered by psychiatrists and psychologists, in addition to other licensed mental health workers, such as the licensed social worker whose notes and testimony were at issue in that case. While the Court in Jaffee refused "to delineate the full contours" of the psychotherapist-patient privilege, it did appear to draw a distinction in the type of treatment covered by the privilege.
Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.
Jaffee , 518 U.S. at 10, 116 S.Ct. 1923. Because federal law does not recognize a physician-patient privilege, see Whalen , 429 U.S. at 602 n.28, 97 S.Ct. 869, the distinction between medical treatment and psychotherapy is crucial in the matter before this court, which involves the records of a psychiatrist, a mental health professional who is licensed to practice medicine.
Psychotherapy, generally, is defined as the "[t]reatment of mental, emotional, and nervous disorders using psychological means." WEBSTER'S II NEW COLLEGE DICTIONARY , 894 (2001). From a more specialized standpoint, however, psychotherapy is defined as the "[t]reatment of emotional, behavioral, personality, and psychiatric disorders based primarily upon verbal or nonverbal communication and interventions with the patient, in contrast to treatments utilizing chemical and physical measures." STEDMAN'S MEDICAL DICTIONARY , 1461 (26th ed. 1995). Another medical dictionary defines psychotherapy as the "treatment of mental disorders and behavioral disturbances using such psychological techniques as support, suggestion, persuasion, reeducation, reassurance, and insight in order to alter maladaptive patterns of coping and to encourage personality growth." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY , 1384 (28th ed. 1994). Thus, as the Jaffee Court recognized, communication and the sharing information between therapist and patient is a critical component of psychotherapy.
As stated above, the subset of seized records provided in this matter for the court's review make no mention of any counseling or intervention, other than medication, being offered to these patients by this psychiatrist. The electronic patient records reviewed contain absolutely no evidence that this psychiatrist provided any supportive statements, insights or suggestions to these patients or made any effort to persuade, reeducate or reassure them. In fact, these records show no communication from the psychiatrist to these patients. As stated above, the only patient statements contained in these electronic records are brief statements of their chief complaints. With regard to the paper patient files, some of these records contained checked boxes reflecting that the psychiatrist "discussed" or "reiterated" certain topics that could be considered as offering the patient support, suggestion, persuasion, reeducation or reassurance. Nonetheless, these check-box forms clearly state that the visit was for "Medication Management," a task usually performed by a psychiatrist as part of his or her medical practice and not psychotherapy.
I note that the records provided to the court also contain some records from a local community services board and counselors employed by the community services board. These records, however, state that they are related to the patient's attendance at Virginia Alcohol Safety Action Program, ("VASAP"), classes, not psychotherapy sessions.
In finding that the records offered for the court's review are not the types of records protected by the psychotherapist-patient privilege, it is important to note that the court has no information before it other than the patient records themselves and the affidavit offered in support of the application for the Search Warrant. The court has not reviewed the entirety of the patient records seized and has not been provided any further information concerning the psychiatrist's practice in general or treatment of these patients.
It also is important to note, however, that the Government is seeking access to unredacted versions of these patient records as part of an ongoing criminal investigation of the psychiatrist. The Government also is not seeking to publicly disclose any of these patient records. To the contrary, the Government seeks to protect these records from public disclosure to protect its ongoing criminal investigation by requesting an in camera ex parte review of the records. The court, in this Memorandum Opinion, is not granting the Government permission to use the redacted information for any use other than in its criminal investigation of the psychiatrist from whom the records were seized.