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"B". APPEAL DR. LOREN ROTH (10/05/78)

decided: October 5, 1978.


No. 150 March Term, 1977, Appeal From the Order of the Court of Common Pleas, Juvenile Division, of Allegheny County, Pennsylvania, at No. J 213 of 1976, entered on April 26, 1976, holding Appellant in contempt of Court, as modified by the Order of the Superior Court of Pennsylvania, Pittsburgh District, No. 747 April Term, 1976, entered on April 19, 1977.


Wilbur McCoy Otto, Stewart M. Flam, Dickie, McCamey & Chilcote, Alan Meisel, Pittsburgh, Joel I. Klein, Mental Health Law Project, Washington, D. C., for appellant.

Alexander J. Jaffurs, County Sol., Douglas T. Greene, Asst. County Sol., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion. O'Brien, J., concurred in the result. Eagen, C. J., filed a dissenting opinion. Pomeroy, J., filed a dissenting opinion in which Mr. Justice Nix joined.

Author: Manderino

[ 482 Pa. Page 474]


This appeal is from the April 26, 1976, order of the Court of Common Pleas of Allegheny County, Family Division,

[ 482 Pa. Page 475]

Juvenile Section, holding appellant, Dr. Loren Roth, in contempt. The circumstances surrounding the contempt citation occurred during the dispositional phase of a juvenile delinquency proceeding. A thirteen-year-old boy named "B" was adjudicated a delinquent after he escaped from a juvenile facility and participated in a theft of four automobiles. As part of the court's efforts to determine proper placement for the juvenile, both "B" and his mother were interviewed by various juvenile court personnel. In the course of these interviews it was learned that "B's" mother had received inpatient psychiatric treatment at the University of Pittsburgh, Western Psychiatric Institute and Clinic (WPIC), on four occasions between 1964 and 1974. Based upon this information, the juvenile court's psychiatrist, who had examined both "B" and his mother, recommended ". . . getting the hospital records regarding "B's" mother and her treatment." In response to this recommendation, the juvenile court judge wrote to WPIC requesting release of "B's" mother's psychiatric records. When informed by WPIC that the records would not be released without the patient's consent, the court issued a subpoena to the Administrator of WPIC ordering him to attend a hearing on April 26, 1976, and to bring "B's" mother's records with him. On April 26, 1976, Dr. Roth attended the hearing on behalf of the director of WPIC, and although he had brought the appropriate documents with him, refused to release them to the Court without the patient's consent. Dr. Roth was then adjudged in contempt of court and fined $100.00. Execution of the court's order was stayed pending appeal.

Subsequently, the Juvenile Court issued a written opinion stating that Dr. Roth had been held in "direct civil contempt" for his refusal to obey the subpoena. Appeal was taken to the Superior Court. Although the contempt citation was labeled "civil contempt" by the judge, the Superior Court found that ". . . no standards were attached to the sanction by which appellant could purge himself of his contempt . . .," that the dominant purpose of the contempt order was punitive in nature, and that therefore,

[ 482 Pa. Page 476]

    the contempt was criminal. In re B, 247 Pa. Super. 395, 372 A.2d 884 (1977). Having concluded that the contempt was criminal rather than civil, the Superior Court ordered Dr. Roth's appeal transferred to us. Id. This appeal followed.

Initially, we note our agreement with the Superior Court that exclusive jurisdiction over this appeal is vested in us by the Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202(5). 17 P.S. § 211.202(5) (Supp.1978). Although the Juvenile Court characterized its contempt citation as "civil," that classification is not determinative. Woods v. Dunlop, 461 Pa. 35, 334 A.2d 619 (1975). We said in In Re Martorano, 464 Pa. 66, 77, 346 A.2d 22, 27-28 (1975):

"There is nothing inherent in a contemptuous act or refusal to act which classified that act as 'criminal' or 'civil.' The distinction between criminal and civil contempt is . . . a distinction between two permissible judicial responses to contumacious behavior.

These judicial responses are classified according to the dominant purpose of the court."

As we said in Commonwealth v. Charlett, 481 Pa. 22, 391 A.2d 1296 (1978), quoting from Woods v. Dunlop, supra, 461 Pa. at 40, n. 2, 334 A.2d at 622, n. 2:

"Discovery of the Court's dominant purpose requires a functional analysis of the court's action. . . . Basically, the reviewing court must decide whether the citing court's purpose was to 'vindicate the dignity and authority of the court and to protect the interest of the general public.' Such citation is for criminal contempt. If the citation's purpose is to coerce the contemnor into compliance with the order of the court to do or refrain from doing some act primarily for the benefit of a litigant or a private interest the citation is for civil contempt." (citations omitted).

Clearly, the dominant purpose behind the court's contempt order was to vindicate the court's authority by punishing appellant for his refusal to obey the court's order.

[ 482 Pa. Page 477]

Immediately following his refusal to give the hospital records to the court, appellant was adjudged in contempt and a fine of $100.00 was assessed. No conditions or standards were attached which would have allowed appellant to purge himself of his contempt by compliance with the court's order. Appellant was thus powerless to escape by compliance. Thus, the contempt was criminal in nature and the appeal properly lies with us. We therefore address the merits of the controversy.

Appellant's argument is two-fold. He first argues that a patient's psychiatric records are privileged from judicial disclosure in a juvenile delinquency proceeding by the so-called doctor-patient privilege statute. He also contends that the patient's constitutional right of privacy prevents disclosure of information obtained by the doctor within the confines of the doctor-patient relationship. Ordinarily, when faced with an issue raising both constitutional and non-constitutional questions, we will make a determination on non-constitutional grounds, and avoid the constitutional question if possible. Commonwealth v. Staley, 476 Pa. 171, 381 A.2d 1280 (1978). We conclude that the doctor-privilege statute does not prohibit disclosure of the records in this case, but that their disclosure is barred by the patient's constitutionally protected right of privacy. We will therefore discuss both the constitutional and the non-constitutional questions raised.

The doctor-patient privilege statute, Act of June 7, 1907, P.L. No. 462, as amended, 28 P.S. § 328, provides:

"No person authorized to practice physics or surgery shall be allowed, in any civil case, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil cases, brought by such patient, for damages on account of personal injuries."

In ruling that the privilege created by this statute did not apply in the present context, the juvenile court relied on

[ 482 Pa. Page 478]

    three different grounds: (1) that the records were not "communications," (2) that disclosure of the records would not "tend to blacken" "B's" mother's character, and (3) that general considerations of public policy, particularly the need for the court to assure proper placement of a juvenile adjudicated delinquent, mandated disclosure of the psychiatric records.

Pennsylvania appellate courts have had little occasion to consider the parameters of the privilege statute. Although the statute's prohibition speaks in terms of ". . . any information. . . acquired in attending the patient," (emphasis added) this Court, when first called upon to construe the statute, in In re Phillips' Estate, 295 Pa. 349, 145 A. 437 (1929), limited the prohibition to "communications" received from the patient, and held that the act does not prevent disclosure of information learned by a doctor through examination or observation. See also, Panko v. Consolidated Mutual Insurance Co., 423 F.2d 41 (3d Cir. 1970) (Pennsylvania privilege statute applies only to communications and not to information acquired by physical examination); and Woods v. National Life and Accident Insurance Co., 347 F.2d 760 (3d Cir. 1965) (Pennsylvania privilege statute applies only to patient's communications which tend to blacken patient's character). This distinction between "communications" and "examinations" established by Phillips' Estate, is said to be based upon the purpose of the privilege statute, namely, to create a confidential atmosphere in which the patient will be encouraged to disclose all possible information bearing on his or her illness so that the physician may render effective treatment. The statutory privilege need not apply to information learned by the doctor through observation and examination because confidentiality presumably is not required for the doctor to observe and examine but confidentiality is essential if the doctor's information is to be obtained from the patient's communications.

Nevertheless, appellant argues that the statute should bar testimony of a psychotherapist because, in psychotherapy,

[ 482 Pa. Page 479]

    most if not all information is obtained from "communications" of the patient.

"In psychotherapy, however, every statement is a link in the chain. Thus all statements are relevant to treatment, and require confidentiality. All physicians may discuss matters with their patients which have no relevance to the illness, but in psychotherapy, almost all, if not all, statements are pertinent to and essential for treatment." Slovenko, Psychotherapy, Confidentiality and Privileged Communications 44 (1966).

To support this proposition, appellant relies on the Superior Court's decision in Commonwealth ex rel. Romanowicz v. Romanowicz, 213 Pa. Super. 382, 248 A.2d 238 (1968). In that case the court held in part, that all testimony regarding a psychiatrist's examination of the patient was properly excluded in a child custody dispute. As stated by the Superior Court

"There is nothing in the record . . . which would reflect that the parties ever considered [a stipulation entered by the husband and wife] an agreement to waive the physician-patient privilege. Under such circumstances, the husband could properly invoke the privilege and refuse to have the psychiatrist testify as to the husband's examination." (Emphasis added.)

Id., 213 Pa. Super. at 386, 248 A.2d at 240.

The court's opinion in Romanowicz does not make clear whether the proposed psychiatric testimony was obtained solely through "observation" of the husband, or whether the psychiatrist's "examination" consisted of conversations with the patient so as to make ...

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