Happy Easter!!

We are now in the midst of Holy Week, the most holy time for Christians.  Beginning on Palm Sunday we work our way through Holy Week recounting Our Lord‘s last days and hours.  We come to Spy Wednesday, which commemorates when Judas betrayed Jesus into the hands of the authorities for a measly thirty pieces of silver.  We are now on Maundy Thursday, the day on which Jesus had his Last Supper and gives his new commandment to wash one another’s feet and, more importantly, establishes and institutes the Sacrament of the Breaking of the Bread, which we now call the Eucharist or Communion, where he gives us his saving body and blood to take into our soul.  At the end of the Maundy Thursday rite we strip the altar just as Our Lord as stripped.  Tomorrow, on Good Friday, we remember Jesus’s awful torture and crucifixion as we go into the Holy Triduum.  Of course, our sadness and grief on Good Friday turns to joy during the Great Easter Vigil which moves us into Easter when we learn the Good News that Jesus is no longer dead but alive and, therefore, has killed death.  All of this takes place over the Jewish Passover to establish Jesus as the true Passover lamb.  The lamb protected the Jews from death when its blood was put onto the door posts of their homes.  Jesus’ blood goes onto the doorposts of our souls to protect us from eternal death for all who ask him for it.  Thanks be to God!

This whole drama is played out for our benefit so that we can all be saved and spend eternity with God.  Jesus took our punishment for our sins upon himself so God’s justice could be satiated.  We can do nothing other than thank him and accept his gift of self so we can spend eternity with him.  This is the greatest event which will ever occur in human history and I am humbled it was done to save me.  Thanks be to God eternally!

The Discoverability of Psychiatric Records

The issue of the discoverability of one’s health records took center stage in the matter of Gormley v. Edgar, 2010 PA Super 71, a recent case heard by the Superior Court of Pennsylvania. The discovery process is designed to facilitate the exchange of information between the parties to litigation. Generally speaking, the standard of what can be requested and required to be revealed in discovery by a party is rather liberal. However, when psychiatric records are the subject of the discovery requests, there are significant limitations as to what a party can request.

There are two competing interests at work when requesting psychiatric records. The first interest is the party’s interest in the privacy of his psychiatric records. The second interest is the ability for an adverse party to adequately defend himself and, in the interest of fairness and equity, be able to secure sufficient documentation for that defense. These two interests come into conflict, obviously, when the documentation sought by one party consists of the documents the other believes to contain private information that he has a right to protect.

The right to the privacy of one’s psychological records has been codified as 42 Pa.C.S.A. Section 5944. The text of Section 5944 is as follows: “No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services on behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.”

It is interesting to note that when 42 Pa.C.S.A. Section 5944 was passed in 1976, it only made reference to psychologists and their records, and not psychiatrists and their records. Therefore, perhaps counter-intuitively, the Court drew a distinction between psychological records and psychiatric records. The Court has ruled that as the statute specifically refers to psychologists, and could have easily included psychiatrists, the legislature clearly intended to exclude psychiatrists and other sorts of mental health counselors from the privacy guaranteed by Section 5944 (see Miller v. Colonial Refrigerated Transportation Incorporated, 81 F.R.D. 741 (1979). However, in 1989 42 Pa.C.S.A. Section 5944 was revised to include psychiatric records.

The privacy guaranteed by Section 5944 is reinforced by the discovery standards set by Pa.R.C.P. 4003.6 which follows: “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from: (1) the attorney’s client; (2) an employee of the attorney’s client, or (3) an ostensible employee of the attorney’s client.” Therefore, on the strength of these two statutes and the cases decided thereunder, there is, at least in general, a guarantee of privacy for one’s own psychological and medical records. Obviously, one could argue that the treatment provided by a psychiatrist or other mental health professional is, at least in spirit, “medical” treatment inasmuch as someone seeks the help for healing of some sort.

Despite the guarantees above, and unfortunately for a party attempting to suppress the records describe above, the Court has made it clear that the privacy of such records is not absolute in certain circumstances. One of those circumstances is when a party raises psychological injuries as damages in a case. If a party raises psychological issues, the Court has effectively ruled that doing so functions as a waiver of the party’s privacy over one’s psychological records. To put it simply, a party “waive[s] her statutory privilege by filing [a] lawsuit and claiming psychological damages.” Helper v. Alvis, 63 Pa.D.&C.4th 129 (2003) and Premack v. J.C.J. Ogar, Inc., 148 F.R.D. 140 (E.D.Pa. 1993). Therefore, “in order to pursue psychological damages, the plaintiff must accede to discovery with respect to mental-health care providers with whom he or she has consulted.” Loftus v. Consolidated Rail Corp., 12 Pa.D.&C.4th 357 (1991). If the party continues to refuse to produce the records, it will be at the pain of dismissal of any and all claims for psychological injuries. Id.

The raising of a mental health condition as damages flowing from an accident was the issue raised in Gormley v. Edgar. The Plaintiff in the aforesaid matter alleged she suffered from anxiety as a result of an accident she claimed was caused by the Defendant. The Court ruled that by so doing she placed her mental health condition directly at issue, rendering her mental health records, at least in part, discoverable. The Court also ruled that if one alleges the aggravation of a pre-existing mental health condition, records of prior treatment for the same are also discoverable. Similarly, the Court finally ruled that mental health records predating the accident at issue are also potentially discoverable as a defendant may wish to prove that the mental health condition alleged pre-existed whatever a plaintiff alleges is its cause. Again, as stated above, these records only become discoverable when a party raises his mental health as an issue in the case.

Although, in general, a party must reveal his psychological records if one raises psychological injuries, the waiver described above is not completely unfettered. The Court recognizes that psychological records are extremely sensitive and the discovery process could inappropriately reveal irrelevant psychological issues of some sort. The Court has made at least three different options available in an effort to adequately, though perhaps imperfectly, balance the two conflicting interests at work in given a matter. The three options are as follows: (1) have formal discovery in the presence of counsel which would afford counsel the opportunity to object on the basis of relevance and other appropriate reasons. Marek et al. v. Keyer, M.D., et al., 733 A.2d 1268 (Pa.Super.1999). Presumably, a deposition of the psychologist(s) would be scheduled, who would be instructed to bring his file regarding a client with him to the deposition. Over the course of the questioning, the records would be produced as appropriate and the attorney would object as appropriate; (2) request the Court to conduct an in camera inspection of the records and if the records do not reveal the information one believes it does, the records will remain protected by Section 5944. Commonwealth v. Kyle, 367 Pa.Super. 4848 (1987); and (3) request the Court to order its own psychological evaluation under Pa.R.C.P. 4010(a)(3). Of course, this remedy would implicitly require the client to permit his records to be reviewed by the independent psychologist and would, presumably, have to respect the conclusions reached in the Court ordered psychological report. Obviously, more than either of the above options, this option carries with it the greatest risk of any undesirable information being revealed and used against the client.

In the final analysis, it appears that a party cannot be forced to reveal his psychological records to an opposing party. However, if he wishes to proceed with claims alleging psychological damages, that party may not attempt to suppress them. Instead, the opposing party has a right to see those records so that he may have a fair and equitable opportunity to raise a proper defense the claims leveled against him. The client has the options of withdrawing the psychological claims or moving forward and allowing the records to be revealed to the opposing party. If the client elects to move forward, he may have one or more of the three options above to mitigate the loss of privacy and successfully suppress, at least in part, his psychological records.

Originally published in Upon Further Review on June 8, 2010 and can be seen here and on my website here.

Let Justice Roll!!

It’s the big day!  The Clinic is having it’s Let’s Justice Roll event today at 5:30pm!  The details are below.  I realize the RSVP was for 3/19/13 but I doubt anyone would turn you away if you just appeared today.  Be sure to show up and see everything that God is doing among the less fortunate in Philadelphia with the Clinic.  Thanks!

You are invited

to Christian Legal Clinics of Philadelphia’s

“Let Justice Roll” Tour!

When: Thursday, March 21st, 5:30-6:30 pm

Where: 4455 N 6th Street, Phila, PA 19140 (see map)

Come and learn firsthand about CLCP’s mission and impact at our North Philadelphia office!  See our clinic in action and hear stories from our clients. We want to spread the word about the good work CLCP is doing in Philadelphia and gather your feedback. Please RSVP here no later than March 19th.

We look forward to sharing our program with you!

God bless,

Pete Hileman

Peter M. Hileman

Executive Director

Christian Legal Clinics of Philadelphia

4455 N. Sixth Street, Suite 100

Philadelphia, PA 19140

(215) 399-0064 x700

phileman@clcphila.org

www.clcphila.org

There’s No Business Like Snow Business

The winter of 2009–2010 saw the Philadelphia metro area get record breaking snowfall. Many feet of snow piled on the sidewalks, driveways, stoops, and porches of property owners all across the area made for many hours of shoveling, salting, and sweeping to ensure safe and clear pathways on which to walk. Although the Philadelphia area may never get six-plus feet of snow in one winter in the lifetimes of the readers of this article again, the area will certainly receive snow in varying amounts each winter. Given this, it is important for property owners to know their responsibilities regarding the removal of snow from their property and what they need to do to avoid civil liability.

There are two basic ways a property owner can be liable for the snow on his property: the first is a violation of City ordinance and the second is in a tort action. Obviously, both could be present in a single matter; however a violation of the City ordinance does not necessarily guarantee tort liability for the property owner, nor does a violation of a City ordinance guarantee tort liability.

The requirements of the Philadelphia City Code are pretty straightforward regarding property owners’ responsibility for the snow on their property. According to Philadelphia Code §10-720, a property owner must shovel a thirty inch (30”) wide path on their sidewalks within six (6) hours after the cessation of snow fall. The ordinance requires that the thirty inch (30”) wide path be thoroughly cleared of snow and ice. “Where the width of any pavement measured from the property line to the curb is less than 3 (three) feet, the path cleared may be only 12 inches in width. When the building in question is a multifamily dwelling the owner or his agent shall be responsible for compliance with the requirements of this section.” (quoting the above citation). Of course, when shoveling the snow, one may not dump the snow into the street; so doing is also a violation of this ordinance. If the City successfully tickets a property owner for a violation of §10-720, the property owner is liable to be fined between $50 and $300 per violation.

Whether one violates a City ordinance does not necessarily have any bearing on whether a property owner could be liable in tort to an individual who is injured due to the accumulation of snow and ice on his property. Like many issues sounding in tort, the standards by which liability is measured are somewhat flexible and based on common law determinations of what is and is not reasonable. Tort liability for snow and ice accumulation on one’s property falls into the somewhat nebulous and imprecise “hills and ridges” standard. Essentially, Pennsylvania tort law requires the snow and/or ice on one’s property to be in the form of “hills and ridges” before a property owner can be liable for damages suffered by someone falling on the snow and/or ice on his property. The basic rationale for such a standard, as the logic goes, is that a reasonable property owner will shovel and clear out his sidewalks within a reasonable amount of time. Of course, unlike the Philadelphia City Code, no specific amount of time is specified by the “hills and ridges” standard, it simply requires the snow and ice to be cleared away within a reasonable time. Naturally, this begs the question of how one is to determine what a reasonable amount of time to shovel snow is; this is where the “hills and ridges” analysis is applied. If the snow on a property owner’s sidewalks has been there for such a long period of time that it has developed hills and ridges, then it has been there long enough for the property owner to be liable if someone is injured attempting to walk on the ridged ice and snow. If the snow is smooth and fresh looking, then it is presumed that the snow is relatively newly fallen and, therefore, it is not reasonable to expect it to have been shoveled so quickly for liability to attach to the property owner. Based on this, it is the best practice for an attorney litigating an injury on snow on someone’s property to investigate the appearance of the snow and ice on which the injured person fell.

Clearly, then, while the standards for tort liability and a violation of the City ordinance certainly overlap, they are not exactly the same. Snow can certainly last more than six (6) hours after a snowfall and remain in smooth pristine condition. In other words, one could be in violation of the City ordinance for failing to shovel snow on one’s sidewalk, but not necessarily be liable for damages in tort if someone fell on that very same snow. That is primarily due to the fact that the City ordinance and the action in tort each exist for a slightly different purpose. The liability in a tort action is to ensure people take reasonable care of their property. Not every municipality has the same standards as Philadelphia, or even has standards at all, regarding when snow ought to be shoveled. The City ordinance is for the purpose of ensuring uniformity and safety on the City’s sidewalks, and perhaps for relieving the City of the responsibility of clearing them itself.

Although the winter of 2009–2010 has likely seen the last of the snow, when it returns in the future, it is important to ensure compliance with City ordinances and shoveling it within a reasonable time. Otherwise, it will be over the hills and ridges and through the woods to liability they go for property owners!

Originally published on April 7, 2010 in Upon Further Review and can be found here and on my website here.

More Reason to Oppose Red Light Cameras in Philadelphia

As most of my readers know, I am very much opposed to the red light camera program in Philadelphia.  I think it is terribly unconstitutional.

You can read more about my legal arguments regarding the unconstitutionality and other flaws with the red light cameras in these two articles:  Picture Imperfect: The Implications of Using Cameras to Monitor Drivers and Enforce Traffic Laws and Hidden Pictures: Constitutional Issues With the Red Light Program.

Now, as it turns out, the red light camera program has more than just its unconstitutionality to justify discontinuing it.  Apparently, the program causes more accidents.  A great article published in the Philadelphia Weekly now reveals the new accident trends as a result of the program.  The article is entitled “Red-Light District” and can be found here.

What more can be said?  The program fails under legal scrutiny and on the basis if practicality.  It truly needs to be discontinued.

Two More Great Free Seminars are Offered by the Clinic

See here:

 

and

 

The Clinic is also offering a Deferred Action seminar!

The Clinic is offering an Estate Seminar!

Clinic Day 3-7-13

It is Clinic day once again at the Christian Legal Clinics of Philadelphia’s Salvation Army Clinic.

At least six people are on the list for tonight’s Clinic and we have a good team of attorneys and paralegals in attendance tonight!  We hope and pray that tonight’s Clinic is a blessing to both those serving and those beings served; that the Clinic is a refuge of Christ’s peace for the clients; and, that the Gospel can be both lived and shared in practical, meaningful, and impactful ways.

Pray for us!

Attorneys Beware The Fake Creditor Scam

Here is an article, by Gregory S. Shields, Esquire, who is my friend and colleague,  providing some sound wisdom and insight into how an attorney pursuing a practice in debt collection can be defrauded.  The article is entitled “Attorneys Beware The Fake Creditor Scam” and can be found here and on my website here.