Callis keeps lawyers out of suit involving mental health records

Amelia Flood Jul. 14, 2010, 5:45am



Madison County Chief Judge Ann Callis said she was still "keeping the lawyers out" of a suit involving the release of mental health record statements made by a mother describing a daughter's alleged sexual abuse.

Roy Dripps, the attorney representing plaintiffs Megan, Emily and Mark Fuhler, had asked Callis to reconsider a dismissal order she granted June 25 to the defendants in the case.

The defendants, Gateway Regional Medical Center, Community Health Systems Inc., the law firm of Behr, McCarter & Potter P.C. of St. Louis and attorney Richard Behr had argued the suit brought by the sisters was precluded because their claims arose from privileged actions that took place during a lawsuit brought against Behr's clients, including Gateway, that involved the plaintiffs' mother.

The current lawsuit arises from a series of suits brought against Behr's clients due to the actions of Dr. John Petrovich, also a defendant in the current suit.

The plaintiffs' mother, Jan Fuller, claimed she was wrongfully fired after she informed Gateway's CEO Mark Benz about Petrovich's cocaine use.

Petrovich pled guilty in October 2005 to felony drug charges.

Jan Fuller sued over her firing in July 2008.

Meanwhile, at least seven other lawsuits, including medical malpractice cases, were filed against Gateway and Petrovich related to his drug use.

One of those suits was filed by Bonnie and Jimmy Seitz.

Behr and his firm represented Gateway in the Seitz case.

During the course of the 2008 Seitz suit, the defendants issued a subpoena asking for any and all of Jan Fuhler's psychiatric records.

Jan Fuhler's daughters claim that those records were wrongly turned over to a defense expert witness who then published statements their mother made about their alleged past sexual abuse histories in a report used in the Seitz case.

That report was later amended and those statements redacted.

The Seitz case ended in December 2008.

Jan Fuller's daughters are seeking unspecified damages for the alleged publication, violations of the Illinois Mental Health Confidentiality Act and other claims.

All of the defendants but Petrovich and Heartland Clinic filed to have the suit dismissed.

They argued that the Fuhler daughters did not have standing to bring the suit and that the report was privileged and protected.

Callis agreed June 25.

Dripps filed a motion asking her to reconsider the dismissal July 7.

At the Tuesday morning hearing on the motion, Dripps told Callis that the attorney-client privilege is not absolute and that the law firm should be included in the Fuhler case because the attorneys were acting as agents of the defendants.

"They have not denied that they have failed to go through the steps required by the act," Dripps said.

Callis expressed her doubts about the arguments.

She also told Dripps and defense counsel Gary Meadows that she did not want to set a precedent weakening privilege.

"At best you've got an ethical violation," Callis said. "I think it would be opening the door extremely wide for lawsuits against attorneys. The lawyers are out."

Callis announced she would uphold the dismissal of Behr and his firm but the other parties would stay in the suit.

Meadows argued that because the claims arose from protected work by the attorneys for the other parties, they should be out of the case as well.

"If the lawyers are free, the clients are free," Meadows said. "Clients are not liable for how their lawyers do their job."

Callis told Meadows she understood but that she would allow Dripps time to re-plead the case and look into the matter at summary judgment time. She said she did not doubt that such a move would be filed shortly.

Callis also denied a motion to strike the affidavit of Gateway CEO Mark Benz that was filed by the plaintiffs.

Dripps represents the plaintiffs.

Meadows represents all of the defendants except Petrovich and Heartland Clinic.

No attorney has entered an appearance on Petrovich's behalf in the Fuhler suit.

In the Seitz case, Petrovich was represented by Thomas Falb.

The Fuhler case is Madison case number 10-L-46.

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