In Re Donald Pebsworth, a Witness Before the Special January 1982 Grand Jury. Appeal of Dr. Kersey Antia

705 F.2d 261, 1983 U.S. App. LEXIS 28632, 13 Fed. R. Serv. 60
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 22, 1983
Docket82-2726
StatusPublished
Cited by44 cases

This text of 705 F.2d 261 (In Re Donald Pebsworth, a Witness Before the Special January 1982 Grand Jury. Appeal of Dr. Kersey Antia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Donald Pebsworth, a Witness Before the Special January 1982 Grand Jury. Appeal of Dr. Kersey Antia, 705 F.2d 261, 1983 U.S. App. LEXIS 28632, 13 Fed. R. Serv. 60 (7th Cir. 1983).

Opinions

HARLINGTON WOOD, Jr., Circuit Judge.

This is an appeal from the district court’s order granting the government’s petition to [262]*262enforce a subpoena issued by the Special 1982 Grand Jury in connection with its investigation of possible criminal misconduct by an Illinois psychotherapist, Dr. Kersey Antia, in fraudulently obtaining reimbursements from medical insurance companies through the submission of false psychiatric patient care records. That subpoena commanded Donald Pebsworth, as the authorized representative of Blue Cross/Blue Shield of Illinois, to produce

[a]ny and all records concerning Dr. Kersey Anita [sic], Provider Number 0001672026, from January 1, 1978 to the present. Such records to include but not limited to physician service records, claim submission records, checks, bank drafts and other records of payment.

The requested records include, inter alia, the names of some of Dr. Antia’s patients, a listing of their visits, and, in some cases, the patient’s diagnosis.

Blue Cross and Dr. Antia as intervenorappellant opposed the government’s petition on the basis that the production of the targeted materials would violate the psychotherapist-patient privilege established by the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 111. Rev.Stat., ch. 91V2 §§ 801 et seq. (1981), the common law, and the federal Constitution. The district court, while also discussing the substantive merits of the privilege claim, held that, even assuming arguendo such a privilege existed, it was waived through the patients’ explicit authorization of disclosure of such records to medical insurance carriers, and their consequent expectation that the confidential character of the records would necessarily be compromised pursuant to the reimbursement process. Accordingly, the district court ordered Blue Cross to produce the documents, and subsequently denied appellant Dr. Antia’s motion to reconsider. We need not reach the question of the existence or extent of the asserted psychotherapist-patient privilege, for we affirm the district court’s determination that the patients’ explicit authorization of disclosure of the requested records to third parties, the medical insurers, waived any privilege that might arguably have existed.

We note at the outset that Rule 501 of the Federal Rules of Evidence provides that the privilege of a witness in non-diversity cases “shall 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.” Thus the contours and exceptions of such privileges are clearly a matter of federal common law; state-created principles of privilege do not control. United States v. Craig, 528 F.2d 773, 776, aff’d en banc per curiam, 537 F.2d 957 (7th Cir.1976). Thus, even though the Illinois Mental Health and Developmental Disabilities Confidentiality Act prevents redisclosure by insurance companies of the kind of information sought here without the patients’ written consent, Ill.Rev.Stat., ch. 91x/2 § 806, and provides that any agreement purporting to waive this requirement is void, id. at § 814, we are required to independently analyze whether the patients’ authorization of disclosure to the insurance carriers effected a waiver of confidentiality with respect to the limited and special uses for which they are sought by the government.

An express waiver is “the intentional, voluntary relinquishment of a known right.” Black’s Law Dictionary 1417 (5th ed.). Well-settled principles of testimonial privilege compel the conclusion that any arguable psychotherapist-patient privilege as to these specific kinds of billing and administrative records was intentionally and knowingly relinquished through the patients’ assent to the publicizing aspect of the reimbursement and claims procedure. United States v. Radetsky, 535 F.2d 556, 569 n. 14 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976); Leach v. Millers Life Ins. Co. of Texas, 400 F.2d 179, 182 (5th Cir.1968); Lora v. Board of Education of City of New York, 74 F.R.D. 565, 585 (E.D.N.Y.1977); Jones v. Prudential Life Ins. Co. of America, 388 A.2d 476, 483 (D.C.Ct.App.1976); McCormick, Evidence, § 103 & n. 55 (2d ed.); Wigmore, Evidence, § 7(a) (McNaughton Rev. 1961). In assenting to disclosure of these documents, a reasonable patient [263]*263would no doubt be aware that routine processing of reimbursement claims would require these records to be brought into the hands of numerous anonymous employees within a large corporation. While we might well have decided differently if the information sought under the subpoena involved detailed psychological profiles of patients or substantive accounts of therapy sessions, it cannot be said that the subsequent disclosure of such fragmentary data as is involved here as part of the insurance company’s legal duties in assisting a federal criminal investigation would be beyond the contemplation of the patients’ waiver.

Our interpretation has been embraced by numerous other courts. For example, in a factually indistinguishable case involving a federal investigation of a physician’s submission of false insurance claims, the Tenth Circuit held that the grand jury was properly entitled to subpoena service records and diagnosis forms, and that any arguable reliance upon the physician-patient privilege was prevented by the patients’ explicit consent to disclosure of these records for the purpose of Medicare reimbursement. United States v. Radetsky, 535 F.2d 556, 559 n. 14 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976).1 Analogously, while not invoking the specific term “waiver,” the court in Lora v. Board of Education of the City of New York, 74 F.R.D. 565 (E.D.N.Y.1977) (Weinstein, J.), held that students receiving psychological therapy had effectively foregone their reliance on any protection of detailed, substantive records of their psychological and personal problems from disclosure in a civil action, through their knowledge that records of that therapy were routinely forwarded under school regulations to other school system employees. As the court observed,

A crucial element of the privilege is intent. If a patient makes a communication expecting it to be disclosed to other persons ... there is no privilege. That such an expectation was entertained by students . .. seems significantly more probable than not.... [T]he evaluation procedures in use up to a short time ago explicitly provided access to confidential data by third parties to whom the privilege arguably does not extend....

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Bluebook (online)
705 F.2d 261, 1983 U.S. App. LEXIS 28632, 13 Fed. R. Serv. 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-donald-pebsworth-a-witness-before-the-special-january-1982-grand-ca7-1983.