Circuit Court of Cook County
No. 52C2535
Samuel Binder
vs.
Nathaniel S. Ruvell
Tuesday, June 24, 1952
As printed in:
[JAMA, volume 150, p. 1241 November 22nd, 1952]
Committee on Mental Health
Psychiatric Communications Privileged
The plaintiff, in pursuit of fact discovery, summoned the Michael Reese Hospital, where Mrs. Binder was a patient recently, to produce the records of her case, and also summoned Dr. Grinker, a psychiatrist in charge Mrs. Binder was.
The hospital authorities as well as the doctor appeared before the notary and both refused to testify. A petition was filed here seeking an order demanding the hospital to produce the records and commanding Dr. Grinker to testify. These witnesses justified their refusal on the theory that, this being a psychiatric case, the communications between the patient and the physician are privileged.
It is a case of first impression. No case on the precise question has been presented to the court. And, therefore, the decision here rests upon what the court might perceive to be the public policy of this State.
In this State, so far as I could ascertain, no immunity arises from any professional relationship other than that of lawyer and client and in that case the privilege is one granted to the client, not to the lawyer.
There are, of course, other privileged communications. For instance, communications between husband and wife are privileged. Conversations had in the course of negotiations for settlement or compromise of a claim are privileged. And there are others.
But it is definitely settled that the physician and patient relationship does not enjoy immunity. And I believe it is fair to say that the priest and penitant relationship does not enjoy immunity, although I know of no case and none has been called to my attention where the courts have actually compellable disclosure by the priest of information which came to him in the confessional
Whether or not communications between a psychiatrist in his patient are privileged, the claim here made by Dr. Grinker goes a little too far. The immunity, if there is one, does not arise out of the mere relationship. The psychiatrist is a physician and the relationship between him and his patient is the same in most respects as the relationship between physician and patient.
The physician can be compelled to testify as to all matters upon which he has an opinion and as to all things he observes as objective symptoms. He may be compelled to testify as to the kind of examination he made. In a proper case he may even be compelled to testify as to the history of the case is it came to him from his patient. He can certainly be compelled to testify as to the diagnosis and prognosis of a case and as to the character of treatment that he advised or applied. In this respect the psychiatrist stands in no better position than the physician does.
However, it is claimed that there is a vital difference in respect of communications between the psychiatrist and his patient and communications between the ordinary physician and his patient. I believe that that is true. The ordinary physician seeks from his patient disclosure of facts relating to a particular malady, insofar as the information might aid him in ascertaining the subjective symptoms; the psychiatrist seeks to ascertain the cause of mental or emotional disturbances of a maladjusted patient. His sphere of inquiry necessarily covers every experience of the patient. He may be interested in knowing the experiences of childhood. That may weigh very heavily with him in determining the cause is of the disturbance. He may be interested in the experience of the patient during puberty, during adolescence. In fact, what he seeks to do is to bring back to the conscious memory of the patient things forgotten but which lied dormant in the subconscious mind. He probes deeply, and it is necessary for him to get that information out of the mouth of his patient.
As I recall it, in the early days the man who can be considered as the founders of modern psychiatric treatment, Dr. Freud, Dr. Breuer, resorted to hypnotism and their efforts to penetrate what might be termed the hidden secrets of the patient. That has been largely abandoned and the modern psychiatrist resorts to the slower method of getting the patient to recall forgotten experiences. It doesn’t require any scientific knowledge to understand that there can be no success in the effort to ascertain the true cause of the disturbance or in determining the kind of treatment that should be applied unless there is complete confidence in the mind of the patient, not alone in the capacity and skill of the psychiatrist but in the secrecy of the things transpiring in the doctor’s chambers. That relationship in that respect is unique and is not at all similar to the relationship between physician and patient.
The question of privilege or privileged communication was examined by Dean Wigmore and he concluded that there are four elements to be considered in determining whether or not immunity exists. He concluded that:
- The communications must originate in a confidence that they will not be disclosed;
- The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
- The relation must be one which in the opinion of the community ought to be sedulously fostered; and
- The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.
I think that is a good summary of the factors to be considered by the court in determining the question of whether a communication is privileged or not and particularly the fourth. I think that should be the guiding element, namely, is it, from the social point of view, more important to compel disclosure of a confidential communication so that a particular case be correctly disposed of or is it more important in a particular relationship that the confidences is be protected? The question almost answers itself in a case such as this.
Psychiatry is a relatively new science. Its function is to study the operation of the mind and to apply methods of healing where the mind is disturbed. The pursuit of knowledge in that field has been long delayed. And while I am in no position to judge the potentialities of that science as it is now practiced, we do know with a degree of certainty that it has gained world recognition even as early as World War I. In both of the hostile camps, resort to psychiatry was not only frequent but virtually universal. It has long been extended to the point where in World War II it was a recognized and respected department of the operations of the military, naval and particularly the air forces. It has even gained recognition in our laws, although it is somewhat doubtful as to whether sufficient progress has been made in that field so that laws can be predicated upon it. Nevertheless, it has gained recognition in our criminal code and in the establishment of psychiatric departments to aid the courts.
Undoubtedly the potentialities of this profession are great. As I have indicated, it may not yet have reached its ultimate strength, but it is progressing. And since it is based on confidence, it is clear that if the courts compel disclosure and thus the abuse of that confidence, that much of the knowledge gained in the study of that science would become abstract and useless as a healing means.
There can be no doubt what the answer should be to the query as to which is more important, the protection of the confidences or the correct disposal of a particular case.
The courts and the law have a high respect for science and are always alert and ready to aid in its progress . They, the courts, seek the help of the scientist in the disposition of their cases, in their quest for truth. The courts allow the scientist to express opinions as evidence where the laymen may not do it. And in every respect the courts have shown their high regard for scientific attainment.
It is conceivable that the courts in a situation such as is presented here today would say, true, you are engaged in the profession of healing the mentally disturbed, the maladjusted members of our society. We know that you cannot do it successfully without probing into the inner recesses of the mind. We know that you cannot do it successfully without obtaining the confidence of your patient and getting the information from him. Nevertheless, it is our job to get all the information we can in order to correctly dispose of a case. Therefore, we are going to compel you to disclose those matters which came to you as result of your confidential relationship and thereby run the risk of such a disservice to society as may rob it of a healing process affecting thousands and perhaps millions of our inhabitants.
My understanding of the law is otherwise. I am persuaded that the courts will guard the secrets which come to the psychiatrist and will not permit him to disclose them. I am persuaded that it is just one of those cases were the privilege ought to be granted and protected. And the social significance of it is probably even greater than that which comes from the protection of the communication between lawyer and client.
As a matter of fact, the medical profession has moved rather slowly. It is only within our generation that it has made great strides. Out of this very practice of psychiatry may come evidence of values that we have not in the past been able to see. It may even throw light on the value of the confessional, not from a religious pointed view what from a psychotherapeutic point of view. It may be that the old adage, “confession is good for the soul” may have greater depth than being a mayor adage. There may be therapeutic value in unburdening the things that trouble the mind.
And while generally I am opposed to extending privileges of communications between parties, I think the whole problem needs careful consideration by the courts and, as I’ve already indicated, in the case of the psychiatrist and his patient, at least that phase of the examination by the physician which requires confidential communications should be protected.
The fact that there is no precedent for it is really of no moment. There cannot be a precedent until the question is presented to the courts for decision. And if evidence of changing conditions or changing knowledge is presented to the court, the court must in some way seek to ascertain what the general community interest demands and what the customs and practices of the people in that respect our and from that pronounce its understanding of the public policy.
Accordingly, I shall hold that all confidential communications between Mrs. Binder and Dr. Grinker are privileged and may not be inquired into. To the same extent, insofar as the records of the hospital may disclose such confidential communications, they are privileged.
Counsel for the plaintiff in his brief suggests that because Mrs. Binder is not a party to this lawsuit, the privilege, if it exists, would not apply. I see no merit in that suggestion at all. The cases cited specifically hold and properly hold that knowledge coming to a lawyer from a client who is not a party to the lawsuit in which the lawyer is asked to testify is not privileged unless it in some way affects the client. Of course, it is true that if it doesn’t affect the client, the client has no privilege but here the patient is Mrs. Binder and it would be she who would be most vitally affected by the disclosures.
That leaves only the question as to whether or not I should direct the hospital to open its records with reference to things which they might show as to the conduct of the patient, which in turn would throw some light upon the issues in the case before me. A simple answer to that would be it would be hearsay. Mrs. Binder is not a party to this lawsuit. Mr. Ruvell is a stranger to those records. It is not a case between the hospital and Mrs. Binder or a case in which Mrs. Binder is a party and it is material to the matters in inquiry as to what happened in the hospital.
Ruvell cannot be downed by what somebody put down on a record in the hospital when there was no relationship between him in the institution. And quite in the same way that would apply he, too, as to whether Dr. Grinker should be required to testify as to matters not privileged, and I’ve indicated what they work, examination, objective symptoms, diagnosis, prognosis, treatment. It has no place in this case.
As a matter fact, with reference to the records, counsel in his petition specifically says that he wants them mainly for the purpose of impeaching Mrs. Binder and he a showing that there was some conduct, namely, telephone calls, which would throw light upon the matters in issue here. But I have already characterized the nature of Mrs. Binder’s testimony. There was nothing there which the records there might or could impeach. But I repeat, whether they do or do not contain evidence that might throw light upon the issues in the case here, that would be hearsay.
Accordingly, the motion to compel the hospital to produce its records and to compel Dr. Grinker to testify will be denied.
The above is a statement by the trial judge of the reasons for his decision in should be included in the report of the proceedings.
Harry M. Fisher,
Judge