Desperate to save their six-year marriage a $100,000-a-year Northern Virginia health professional and his wife turned eight years ago to an Arlington psychiatrist for help.
Over the next three years, the couple met 75 times with the psychiatrist, describing in intimate detail their failing marriage.
Under a century-old legal tradition that has been upheld in Virginia and most states, those conversations should have remained secret forever. Communications between a doctor and his patients are considered "privileged" by most courts and are protected from disclosure.
But the sanctity of a doctor's office, some privacy lawyers are arguing, has been seriously upset by a Fairfax County judge, who in a recent decision, ordered the Arlington psychiatrist to tell all.
Circuit Court Judge Richard J. Jamborsky, ruling in the couple's just-concluded divorce case, held that the counseling sessions could not be considered privileged because they involved more than a dotcor and a single patient. "Under those circumstances," the couple's statements "can not be confidential," he said.
According to Washington privacy lawyer Robert Belair, what is at stake is more important than "just a little divorce case in Fairfax County."
Belair and others say that if married couples' confidences can't be protected from court disclosure, then there is even less likelihood the courts will protect what is said in the widely-accepted psychiatric practice known as group therapy.
"The case comes down to protecting the confidentiality of what goes on in group therapy," said Belair, whose group, the National Commission on the Confidentiality of Health Records, is considering assisting the husband with an appeal. The psychiatrist testified on behalf of the wife.
"If this case is upheld," said a psychiatrist, Robert Emma, who practices in Washington and Virginia, "it will pretty much undermine confidentiality between the psychiatrist and his patient. Therapy is classified material, and cannot be unclassified at whim."
In the Fairfax case, the couple's psychiatrist, over the husband's vigorous objections, testified on the wife's behalf about the husband's sex habits and his job difficulties. On cross-examination, he also described the wife's preoccupation with contraception and her sexual frustrations.
His testimony is part of a permanent court record available for public inspection, but it concerns matters so intimate that the husband's lawyer says he is fearful of appealing the case because the attention an appeal might bring his client.
Others worry about the impact of letting the ruling stand unchallenged. Although Jamborsky's ruling applies only to couple's divorce case, lawyers say it could likely be used as a precedent in other cases in Virginia.
"This case will create enormous difficulties for anyone involved in marital therapy," said Alfred M. Freedman, a New York psychiatry professor and past president of the American Psychiatry Association. "It may have an inhibiting effect on group therapy.Patients may have doubts as to whether what they say in anger (before others) -- which may be therapeutically important -- will one day emerge in court."
The Fairfax controversy, lawyers say, is the direct result of privilege laws that in most states, have failed to keep up with the spreading use of group therapy. Many laws, experts say, were meant for the days when only the psychiatrist was privy to his patient's deepest confidences.
Long before the Fairfax ruling, some therapists were demanding that patients agree never to disclose what fellow participants say in therapy. But that action, lawyers concede, has neither the force of law nor does it protect the psychiatrist from being forced to testify in a court proceeding.
Group therapy disclosures are protected by a new law in Washington. Under a measure effective this month, the D.C. City Council has broadly limited the kinds of medical information that can be disclosed about patients. Without the patient's consent, the new law says no medical data can be released in court -- even if the information was obtained in group therapy.
"It seems to be an area that more and more states are getting into and was prompted by concerns of local (medical) professionals," said a council lawyer, Ann Meister.
Ironically, in the Fairfax case, the chancery commissioner, who presided over much of the divorce proceeding, said afterwards in an official court report that he placed "little weight" on the psychiatrist's statements. The testimony, the Commissioner, Strode A. Brant, said, had been based solely on his memory of therapy sessions held years earlier.
Nevertheless, the husband's lawyer, Washington attorney Mark Sandground, is worried by the testimony. "Look at the ramifications," he said.
"If you can testify to what has happened in the bedroom -- which the Supreme Court has said is 'the most sacred place,' then you must understand how dangerous this ruling can be."