Legal Issues in the Orne/Sexton Case

A celebrated poet. A prominent psychiatrist. Taped analytic sessions. A sensational biography. The Orne/Sexton case is obviously the stuff of headlines.

But on another level, the Orne/Sexton case raises rather prosaic legal issues. It is not uncommon that after a patient dies the family will seek access to her medical records. The family may seek the records because it is contemplating litigation against the therapist (this is particularly true if the patient has committed suicide). The family may seek the records to prove to a life insurance company that the patient's death was not a suicide or to challenge the patient's last will. It may seek the records simply to learn how the deceased patient viewed the family. What rights does the law grant to the family seeking access to records? What obligations does it impose on the therapists who possess the records? These are the issues I will address today.

Laws relating to disclosure of medical records are primarily governed by state law and each state has its own laws. In general there are three related types of laws that govern the disclosure of patient records. First, there are the laws that establish when a therapist may disclose records in judicial and related proceedings. These are the privilege laws. Second, there are laws that regulate when a therapist may disclose patient records to third parties in a nonlitigation context. These are the confidentiality laws. Third, there are laws that determine when a therapist must provide records to the patient herself. These are the access-to-record laws. The privilege laws are the oldest and have spawned the most elaborate judicial interpretation. Often courts will look to privilege law in order to interpret a confidentiality or right-to-access statute.

For purposes of these discussions I have looked at the law in the following states: Massachusetts, the state in which Dr. Orne treated Ms. Sexton; Pennsylvania, the state in which he resided