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On November 19, 2008, the Petitioner, Board of Registration in Medicine (BRM), issued a Statement of Allegations ordering the Respondent, Joseph A. Jackson, IV, D.O., to show cause why he should not be disciplined for: engaging in sexual relations with and engaging in myriad other boundary violations with a former adult patient. On January 22, 2008, the Respondent entered into a voluntary agreement with the Board not to practice medicine. The Board referred the matter to DALA for findings of fact and necessary conclusions of law.
On July 20, 2009, the Petitioner filed a Motion in limine to Exclude Testimony of Donald J. Meyer, M.D. and Documents Prepared by Dr. Meyer or in the Alternative to Compel Production of the Respondent's Psychiatric Treatment Records. The Motion in limine and the Motion to Compel were denied. The Petitioner's Motion for Leave to Take an Interlocutory Appeal from these rulings was allowed. The Petitioner's Motion for Reconsideration of the ruling on the Motion to Compel the Psychiatric records was also denied on July 20, 2009.
On September 29, 2009, over the objection of the Petitioner, the testimony of Dr. Meyer was heard de bene subject to the ruling by the Board of Registration in Medicine on the Interlocutory Appeal. Dr. Meyer was called to testify regarding the Respondent's fitness to practice medicine. He was qualified as an expert in forensic psychiatry. His testimony included the listing of the documents he had reviewed and the individuals to whom he had spoken prior to rendering his opinion on the Respondent's fitness to practice medicine. Dr. Meyer did not review the Petitioner's treatment records. He did speak with the Respondent's treating psychotherapists prior to the preparation of his report.
On October 6, 2009, the Petitioner filed a Supplemental Petition for Interlocutory
Relief with the Board requesting that the Respondent be compelled to produce his
psychiatric records. On October 7, 2009 the Board denied both the original and
supplemental Motions for Interlocutory Relief.
On October 26, 2009, the Petitioner filed yet another Motion to Compel Production of the Respondent's Psychiatric Records. The Respondent filed his Opposition to the Motion to Compel on November 4, 2009.
The Petitioner's Motion to Compel Respondent's Psychiatric Records is DENIED. The motion has been heard and ruled on twice by DALA and twice by the Board. The Petitioner has not offered any new arguments or presented any newly discovered facts that would compel the prior rulings to be reconsidered and/or reversed.
As noted by the Respondent, the rules concerning evidentiary privileges do indeed apply in administrative proceedings. G.L. c. 30A, § 11(2) provides:
(2) Unless otherwise provided by any law, agencies need not observe
the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law…(Emphasis added)
The psychotherapist privilege is one of the aforesaid privileges recognized under Massachusetts law. G.L. c. 233, § 20B protects the communications between the psychotherapist and patient and the psychotherapy records generated as a result of those communications.
The Petitioner argues that the Respondent has waived any psychotherapist/patient privilege he enjoys as a result of his having placed his psychiatric condition at issue in defense of this action. This is not so. During his testimony, the Respondent referred to fatigue as a result of working many overtime shifts, irritable bowel syndrome and erectile dysfunction, all medical, not psychiatric conditions. Any reference to his psychiatric history was to the mere fact that he had treated with therapists for several years. The record is void of any use of psychiatric condition(s) to explain his conduct with Patient A.
Further, the Respondent has not waived the psychotherapist/patient privilege through the introduction of the testimony of Dr. Meyer. Dr. Meyer did not review the treatment records of any of the Respondent's psychotherapists when he conducted his forensic evaluation. Rather, he spoke to the psychotherapists. The Petitioner is free to elicit information regarding those conversations during cross examination. It should be noted here that Dr. Meyer testified as to his opinion concerning the Respondent's fitness to practice medicine and not to the totality of the Respondent's psychiatric condition. The direct testimony of Dr. Meyer will remain in the record.
In conclusion, the Respondent has asserted a valid claim of privilege with respect to his psychotherapy records. The Motion to Compel Production of those records is DENIED.
Division of Administrative Law Appeals,
DATED: November 13, 2009