Our Association is to be congratulated on having participated as a successful amicus curiae on behalf of the patient in the well-publicized Doe v. Roe case. This is the case in which a patient obtained a temporary injunction of the distribution of a 1,000-page book, which was primarily a verbatim account of her so-called psychoanalysis and published against her specific wish. The case was so flagrant a violation of professional ethics, that the American Psychoanalytic Association, the American Psychiatric Association and the American Orthopsychiatric Association joined as amici in the preparation of a brief by the Mental Health Law Project. We were successful in having the U.S. Supreme Court remand the case for trial to the local New York County Court. Drs. Jerome Beigler and Jay Katz, members of the American, participated in a pre-trial conference with the plaintiff's attorney and Paul Friedman, director of the Mental Health Law Project. The trial lasted for twelve days in November, 1976. Jay Katz testified for the plaintiff.
Justice Martin Stecher took an entire year to fashion an unusually well-reasoned and carefully written decision that will have technical precedential effect beyond its local jurisdiction and enhance a patient's right to confidential psychiatric and psychoanalytic treatment.
The judge articulated previously legally uncodified concepts concerning informed consent, disguise for publication, rights to privacy and the scientific value of publication. He obviously agreed with many of the concepts presented in our amicus brief, the plaintiff's attorney's arguments and the testimony of Dr. Katz. The decision is a lovely example of the validity of our association's participation in activities that help shape the law in ears of interest to our patients and profession.
Prior to this decision, there was no case law in the areas argued; hence, this is a case of “first impression.” The justice summarized his findings of a verdict he ordered “sealed” to protect the identity of the litigants. He found that the patient had not given consent to the publication of her case history, the alleged consent was not in writing, and he questioned the validity of oral consent given by a patient in the course of active treatment.
Rather than deciding on the complex basis of a constitutional right to publication versus a right to privacy, the justice found that a patient's right of privacy is grounded upon both the state's “public policy” (statutes and regulations) against unauthorized disclosure of personal information as well as the “implied promise of confidentiality which every physician makes to his patient …” “Every patient, and particularly every patient undergoing psychoanalysis, has such a right of privacy.” He attributes the fact that in no previous New York case has such a breach of privacy been remedied to the fact that “so few physicians violate this fundamental obligation.”
Concerning the scientific value of a publication outweighing the right to privacy, the judge found: “in no case, however, has the curiosity or education of the medical profession superseded the duty of confidentiality.” He does not “reach the question of a psychiatrist's right to publish case histories when the identities are fully concealed” nor the issue of whether “an important scientific discovery would take precedence over a patient's privilege of non-disclosure.”
He granted $20,000.00 in compensatory damages and a permanent injunction against further distribution of the book. He denied punitive damages on the basis that the publication was not “wilful, malicious or wanton …, merely stupid,” on the surmise
the defendants thought they had sufficiently disguised identities. Similarly, he awarded no attorney's fees.
The decision technically applies only in the County of New York, can be appealed, may even be overturned and leaves many questions unanswered; but it is exceptionally well-written, will have more than usual precedential value, has already proven to be difficult to appeal because it is so well conceptualized, and defines law in many areas which are helpful to our own articulations of difficult concepts. It will be helpful to our further discussion concerning criteria for publication, disguise, informed consent and scientific value, and has provided a vehicle for the legal articulation of the right to privacy for patients in psychotherapy and particularly psychoanalysis. On the whole, this has been a most worthwhile and gratifying experience for our Association.
Jerome S. Beigler
The Chairman of the Program Committee of the Florida Psychoanalytic Society, meeting in Miami, invites speakers for the Fall-Winter-Spring seasons of 1978-79. Any member planning to be in the vicinity who would like to present a paper should communicate with H. Selinsky, M.D., 175 S.E. 25 Road, Miami, Florida 33129.