Confidentiality Act case under advisement in Mudge's court

By Ann Maher | Jan 21, 2014

Madison County Circuit Judge William has taken under advisement plaintiff and defense motions in a lawsuit against Gateway Regional Medical Center, attorney Richard Behr and the Behr, McCarter and Potter law firm. 

Plaintiffs Megan and Emily Fuhler claim the defendants violated the Confidentiality Act in previous litigation when the psychiatric records of their mother Jan Fuhler were obtained and shared with lawyers involved in another lawsuit.

The records in the wrongful termination lawsuit Jan Fuhler filed against Gateway allegedly contained references to the daughters. Jan Fuhler filed a whistleblower lawsuit in 2004 claiming she was fired after alleging that John Petrovich, M.D. - who pleaded guilty to Medicaid fraud in 2005 - was using cocaine.

Megan and Emily Fuhler seek monetary damages for emotional distress, shame, grief, humiliation and anguish.

The Fifth District Appellate Court had weighed in on the instant case in 2012, holding that the Confidentiality Act, not the absolute litigation privilege, governs the communication of mental health records.

Following a hearing Jan. 15, Mudge wrote that plaintiffs' motion for summary judgment and a defense motion to compel production on use of Jan Fuhler's psychiatric records and related expert reports would be under advisement. He indicated that a current scheduling order would be set aside with a revised order to be entered by agreement depending on his rulings.

On Jan. 14, defendants filed a response to the plaintiffs' motion for summary judgment saying the move is premature, overstated and lacks cause of action.

"To date, the Plaintiffs have set forth no evidence of proximate cause or damage and in fact have claimed in written discovery that they never sought any treatment, medical or otherwise, as a result of the alleged violations of the Confidentiality Act," wrote attorney Theodore MacDonald Jr. Of HeplerBroom. "It is therefore premature to rule on Plaintiffs' motion, particularly where the depositions of the Plaintiffs are still to be taken."

MacDonald represents Behr, Gateway and the firm Behr, McCarter & Potter of St. Louis.

The plaintiffs have objected to complying with requests for producing the records of Jan Fuhler that allegedly contain references to the plaintiffs, according to MacDonald.

"...[T]hese documents form the very basis of the Plaintiffs' claims in this action but, according to the Plaintiffs, they are not subject to discovery in this action," he wrote.

"Such an assertion is not tenable."

MacDonald wrote that the records "are certainly discoverable" in this case.

"Indeed, Jan Fuhler already put her mental state at issue in her original wrongful discharge case when she claimed emotional distress as a result of that discharge."

In Mudge's Jan. 15 order, he also granted a defense motion to compel with respect to plaintiffs' privilege log. 

Madison County case number 10-L-46

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