Psychotherapy Notes

On the evening of January 18, 2003, Marcus Weiss made a call to Harvard Vanguard's triage unit regarding the status of his son, Jordan Bennett Weiss, then nine years old. It is not clear from the opinion whether defendant nurse practitioner, Ann Bragan, took the call or acted upon the information received during the call. It appears that Bragan gave advice regarding Jordan's care. The call was taped and the tape existed at the time of the litigation that arose out of the events of that night. The details of the conversation were not disclosed in this opinion. At some time subsequent to January 18, Jordan died and suit was brought against Nurse Practitioner Bragan.

Weiss entered counseling to help him to deal with his grief. After litigation ensued, Bragan sought discovery of Weiss's psychotherapy records, allegedly to obtain proof of the guilt that he felt as a result of the information conveyed during the telephone call in question. Bragan alleged that the tape of the telephone call contained inaudible sections, hence she needed the psychotherapy records to prove what was said.

The trial court disagreed. It held that the best evidence of the conversation is the tape. If the tape had inaudible sections, it could be enhanced by an expert to determine whether an accurate transcription could be made. The court denied the request to review Weiss's psychotherapy records.

No Single Right Answer

This case highlights a perennial problem for psychotherapists: When should the records of patients be disclosed? If there is a validly executed authorization for release, the issue is resolved, but otherwise care must be taken. In this case it appears that Weiss never consented to the release of his records, and no demand other than through discovery was made, so the psychotherapist was not really called upon to make that decision. However, attorneys sometimes will seek records or information directly, without the patient's authorization, from the practitioner, either by request or by subpoena, and practitioners need to know how to respond. There is no single right answer to that question given the multitude of jurisdictions in the United States, but the best answer is usually to involve counsel, particularly in sensitive cases. It is generally necessary to do something when records are requested and their release is questionable: Do not simply ignore the request. Nonetheless, the decision to release a patient's records should never be made lightly without the patient's authorization.

This case also highlights the humanity of the legal system. The legal system is, of course, governed by rules and sometimes seems hard-hearted. It is also, however, a system designed and implemented by humans, and run by humans. Judges are not immune to the issues of humanity that come before them. In this case the judge recognized the heart-wrenching nature of the matter before him. The judge noted:

Some may suggest that with the passage of time, memory will diminish Jordan's parents' sense of loss. But anyone who has suffered such a tragic and catastrophic loss could not possibly feel this way. How often are we asked in daily conversation, “How many children do you have?” The father or mother who has lost a son (or daughter) must answer: “Well, I had—, but my son (or daughter) died.” Every time parents are asked that casual question, their hearts break.

Here, the Court is asked to allow Marcus Weiss's deepest grief and dearest thoughts to be splayed in a most public forum. After deliberation, I simply cannot countenance such an effort.

It often seems that requests for records are mechanical operations that require little thought. This case stands for the proposition that that is not always the case.

Weiss v. Bragan, 26 Mass. L. Rep. 331
(Mass. Super. Ct. 2009)