Rost v. State Board of Psychology

659 A.2d 626, 1995 Pa. Commw. LEXIS 246
CourtCommonwealth Court of Pennsylvania
DecidedMay 22, 1995
StatusPublished
Cited by28 cases

This text of 659 A.2d 626 (Rost v. State Board of Psychology) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rost v. State Board of Psychology, 659 A.2d 626, 1995 Pa. Commw. LEXIS 246 (Pa. Ct. App. 1995).

Opinion

DOYLE, Judge.

Polly Rost, a clinical psychologist licensed to practice in the Commonwealth of Pennsylvania, appeals from an order of the State Board of Psychology which reprimanded her for having violated Sections 8(a)(9) and (11) of the Professional Psychologists Practice Act (Act).1 We affirm.

The facts in this case are not in dispute, having been stipulated to by the parties. This case originated in February of 1987 when an unlicensed supervisee of Rost began giving psychological treatment to S.P., a female juvenile. S.P. was treated in Rost’s practice for recurring headaches that allegedly were caused when S.P. fell and struck her head at the York Jewish Community Center (YJCC). In March of 1988, S.P.’s mother filed suit against the YJCC on S.P.’s behalf, alleging that YJCC’s negligence had caused her daughter physical and emotional harm.

In December of 1989, YJCC’s attorney mailed Rost a subpoena requesting the treatment records for S.P. Rost subsequently provided YJCC with these treatment records. Although S.P.’s mother had previously signed a release allowing Rost to turn over the records to S.P.’s own attorney, Rost had not obtained permission to release the records to YJCC. Furthermore, Rost did not attempt to contact S.P.’s mother, or S.P.’s attorney, to obtain permission to release the records or to advise them of her intention to release the records prior to doing so. Rost did not attempt to gain permission because she believed that she was already authorized to release records to YJCC based upon the release which had previously been given to S.P.’s attorney.

On January 25, 1993, the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs (BPOA) issued an order to show cause in which it charged Rost with having violated three sections of the Act: (1) Section 8(a)(9) of the Act2 through her violation of Ethical Principle 5 of the Board Regu[628]*628lations3 governing the confidentiality of client information; (2) Section 8(a)(13) of the Act4 by failing to perform a statutory obligation imposed upon licensed psychologists;5 and (3) Section 8(a)(ll) of the Act6 by engaging in unprofessional conduct.

On June 17, 1993, a hearing was held before Frank C. Kahoe, a hearing examiner appointed by the Board. Subsequently, on August 30,1993, the hearing examiner issued a proposed adjudication and order in which he concluded that Rost was not subject to disciplinary action under Section 8(a) of the Act, because S.P. had waived the client-psychologist privilege by asserting a claim for emotional damages in her lawsuit against YJCC. In response, the BPOA filed a brief on exceptions. The Board disagreed with the hearing examiner’s recommendation, and by an amended order dated April 18, 1994,7 officially reprimanded Rost for having violated Section 8(a)(9) and (11) of the Act.8 Rost’s appeal to this Court followed.9

On appeal, Rost presents the following questions for our review: (1) whether Rost violated Sections 8(a)(9) and (11) of the Act by releasing confidential medical records when she did so in response to a valid subpoena and where her client had previously authorized the release of the same records to the client’s attorney; (2) whether the Board improperly found that Rost violated Sections 8(a)(9) and (11) of the Act since Ethical Principle 5 of the Board Regulations, upon which the Board’s findings were based, is void for vagueness; and (3) whether Rost was exempted by Ethical Principle 5 of the Board Regulations from her duty to not release the records and thereby did not violate Sections 8(a)(9) and (11) of the Act.

Rost’s first argument is that she did not violate Sections 8(a)(9) and (11) of the Act because she released the records pursuant to a subpoena and S.P. waived her right to confidentiality by initiating a lawsuit in which her psychological condition was at issue. In support of this position, Rost points out that the trial court in S.P.’s lawsuit against YJCC ultimately ruled that S.P. had waived her privilege of confidentiality. (Respondent’s Exhibit C, Reproduced Record (R.R.) 5d.) She further claims that S.P.’s attorney had a duty to disclose the records to YJCC during discovery. Accordingly, Rost argues that she did not violate Ethical Principle 5 of the Board Regulations, since S.P. no longer had an expectation of privacy in regard to the records.

However, we must agree with the Board that Rost’s argument is misplaced. We are [629]*629not faced with the question of whether YJCC should have been barred from introducing S.P.’s records at trial based on the psychologist-client privilege. That is a determination properly made by a judge and not by a psychologist lacking formal legal training. See Moore v. Bray, 10 Pa. 519 (1849); Commonwealth v. Hess, 270 Pa. Superior Ct. 501, 506, 411 A.2d 880, 833, appeal dismissed as improvidently granted, 499 Pa. 206, 452 A.2d 1011 (1979) (no claimant of a testimonial privilege can be the final arbiter of his own claim). At the time Rost released S.P.’s records to YJCC, she did not seek the consent of her client, professional legal advice or the imprimatur of a judge. Rather, she unilaterally decided to release S.P.’s records.

Rost is also mistaken when she attempts to equate the psychologist-client privilege with the rule of confidentiality found in the Code of Ethics for psychologists. Although the two are similar, the privilege is limited in scope to the question of admissibility of evidence in a civil or criminal trial. In interpreting the psychologist-client privilege, we are guided by the same rules that apply to the attorney-client privilege. Kalenevitch v. Finger, 407 Pa.Superior Ct. 431, 595 A.2d 1224 (1991). The privilege may be waived by the client as was ultimately found to have occurred in this case.10 Waiver of the privilege may occur where the client places the confidential information at issue in the case. Premack v. J.C.J. Ogar, Inc., 148 F.R.D. 140 (E.D.Pa.1993). It may also be waived where there is no longer an expectation of privacy regarding the information because the client has made it known to third persons. See Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (attorney-client privilege no longer exists where communications were publicly disclosed by direction of client.)

Nevertheless, the Code of Ethics for psychologists imposes a duty of confidentiality which extends beyond the testimonial privilege found in Section 5944 of the Judicial Code;11 this duty is absolute and cannot be waived except after full disclosure and written authorization by the client. Unlike the privilege, it continues even when the information has been previously disclosed to third parties or is material to litigation initiated by the client. In the present case, Rost did not even attempt to obtain the consent of her client before releasing confidential information. Although S.P. was eventually found to have waived the psychologist-client privilege, this does not absolve Rost from her ethical duty of confidentiality. Rost had a duty to either obtain written permission to release the records from S.P. or challenge the propriety of the subpoena before a judge. Rost did neither.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schmidt, R. v. Leboon, S.
Superior Court of Pennsylvania, 2015
Bandru v. Fawzen
46 Pa. D. & C.5th 1 (Lackawanna County Court of Common Pleas, 2015)
Tejada, R. v. Gonzalez Cert. Nurse
Superior Court of Pennsylvania, 2015
R.L.C. v. J.M.C.
Superior Court of Pennsylvania, 2014
Octave ex rel. Octave v. Walker
37 A.3d 604 (Commonwealth Court of Pennsylvania, 2011)
Commonwealth v. Harris
32 A.3d 243 (Supreme Court of Pennsylvania, 2011)
Behar v. Pennsylvania Department of Transportation
791 F. Supp. 2d 383 (M.D. Pennsylvania, 2011)
Gormley v. Edgar
995 A.2d 1197 (Superior Court of Pennsylvania, 2010)
Leskin v. Christman
78 Pa. D. & C.4th 152 (Carbon County Court of Common Pleas, 2006)
Mikulas v. Burdette
67 Pa. D. & C.4th 379 (York County Court of Common Pleas, 2004)
Doe v. Ensey
220 F.R.D. 422 (M.D. Pennsylvania, 2004)
Crimmins v. PennDot
61 Pa. D. & C.4th 363 (Adams County Court of Common Pleas, 2003)
Topper v. Shatzler
54 Pa. D. & C.4th 554 (Franklin County Court of Common Pleas, 2001)
Womack v. Stevens Transport, Inc.
205 F.R.D. 445 (E.D. Pennsylvania, 2001)
Rosse v. Rosse
49 Pa. D. & C.4th 438 (Berks County Court of Common Pleas, 2000)
Spalla v. Robbins
44 Pa. D. & C.4th 70 (Blair County Court of Common Pleas, 1999)
Commonwealth v. Chmiel
738 A.2d 406 (Supreme Court of Pennsylvania, 1999)
Connors v. Dawgert
38 Pa. D. & C.4th 367 (Lackawanna County Court of Common Pleas, 1998)
Kraus v. Taylor
710 A.2d 1142 (Superior Court of Pennsylvania, 1998)
In Re Subpoena No. 22.
709 A.2d 385 (Superior Court of Pennsylvania, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
659 A.2d 626, 1995 Pa. Commw. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rost-v-state-board-of-psychology-pacommwct-1995.