Court ruling could affect psychologists

By Bruce G. Borkosky, Psy.D.
May 31, 2019

Court cases market forces reshaping psychologyA case decided in a Connecticut court in December has broad ramifications for psychologists, including limiting a practitioner’s reliance on informed consent to govern confidentiality standards.

Byrne v Avery Center

In 2004, Emily Byrne became pregnant with Andro Mendoza’s baby. Sensing trouble, she broke up with Mendoza and moved out of town; Mendoza then filed a paternity lawsuit.

Despite specifically instructing the Avery Center for Obstetrics and Gynocology in Westport, Conn., not to disclose her records, Avery promptly disclosed them on receipt of a subpoena.

Mendoza then used the records to file numerous civil actions against Byrne, her attorney, her father and her father’s employer and to threaten Byrne with criminal charges.

So Byrne sued Avery for, among other things, breach of contract and negligent infliction of emotional distress. However, the trial court dismissed her claims, based on HIPAA’s lack of a “private right of action.”

Byrne appealed, and the Connecticut Supreme Court agreed that HIPAA could be used to set the standard of care (in accordance with a majority of 16 prior cases) but held that HIPAA does not preempt state-based claims for a breach of confidentiality and state courts must comply with HIPAA, including subpoenas.

But, on remand, the trial court again rejected Byrne’s claims, this time ordering a summary judgement for Avery. The Court reasoned that there was no privilege for medical records. Thus, disclosing those records, pursuant to a subpoena, was not a violation of confidentiality. (Can you spot the error in this logic? Answer below.)

Byrne appealed a second time, and again the high court ruled in her favor, overturning the decision and remanding to trial. The court expressed its strong disapproval of Avery’s behavior, noting that it “…did not even comply with the face of the subpoena, which required [Avery] to appear in person…. Instead, [Avery] mailed a copy of [Byrne’s] medical records directly to the court.”

The court also noted that by Avery’s “…own admissions … it did not comply with [HIPAA] when it responded to the subpoena in the present case.” The court held that a duty of confidentiality arises from the doctor-patient relationship and providers can be sued for breaches of confidentiality.

At trial in December of 2018 – nearly 15 years after the litigation began – Byrne was awarded $853,000.

Implications for practitioners

HIPAA is increasingly being used as the standard of care. Thus, all practitioners, even those who are not HIPAA-covered entities, may be at risk of civil litigation for failing to comply with HIPAA’s provisions.

This may implicate more than breaches of confidentiality. For example, some psychologists are using informed consent as a form of contract with the patient, thereby having the patient waive his/her rights. Such “contracts” may not be enforceable, because the contractual aspect of healthcare does not nullify one’s fiduciary duties to the patient.

Understanding the difference between privilege and confidentiality can be critical. Confidentiality regulates providers (prohibiting unauthorized disclosure of patient information). Privilege regulates the legal system (prohibiting discovery or admission into evidence of patient information).

Even in cases where the court determines that privilege does not apply, psychologists are still bound by the laws of confidentiality (i.e., disclosure requires either a court order or patient authorization).

The Byrne court observed that a subpoena by itself cannot authorize disclosure because it “is not a statute, regulation of a state agency or rule of court.”

So, what was the problem with the first ruling? The court committed a frequent error, conflating privilege and confidentiality, thinking that, if the court is permitted to admit the records into evidence, that nullifies the provider’s responsibility to comply with confidentiality laws. It does not.

The doctor-patient relationship has a dual nature (contractual and fiduciary). The contractual view highlights the patient’s right to autonomy, and the fiduciary view emphasizes the psychologist’s ethical and legal duties.

When providers harm patients, patients can seek relief, both via contract-related legal theories (e.g., breach of contract and negligent misrepresentation) and fiduciary-related legal theories (e.g., negligence and negligent infliction of emotional distress).

As discussed by the Byrne court, practitioners have several options when faced with a subpoena, including obtaining the patient’s authorization/ waiver, filing written objections, filing a motion to quash or for a protective order, obtaining a court order or appearing in court.

References available from author.

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Bruce G. Borkosky, Psy.D., is a psychologist who practices in Panama City, Fla. He sometimes provides forensic services but is not an attorney. This commentary is not to be considered legal advice, which if needed should be sought from an attorney licensed in the practitioner’s jurisdiction. He may be reached by email at

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