‘Affluenza’ Doctor Must Cough Up His Notes

     FORT WORTH (CN) – Attorneys for a Texas teen sentenced to probation for the drunken-driving deaths of four people must hand over records of the doctor who controversially diagnosed him with “affluenza,” a Texas appeals court ruled.
     Judge Jean Boyd sentenced Ethan Couch to 10 years probation and therapy in December 2013. The 17-year-old had faced up to 20 years in state prison for a fatal June 15 collision in south Fort Worth.
     Police said Couch was going 70 mph in a 40 mph zone, and his blood alcohol content was three times the legal limit of .08 for an adult. It is illegal for minors to drive with any alcohol in their systems.
     During trial, defense psychologist Dr. G. Dick Miller testified that Couch is a product of “affluenza” – that his family felt wealth bought privilege, so the boy saw no link between behavior and consequences.
     The Couches have since been sued by the families of the dead and injured.
     In March, the plaintiffs moved to depose Miller and for a production of records. The Couches moved to quash, arguing that his opinions in Couch’s defense in the juvenile case are confidential under the Texas Family Code and are privileged under the work-product, attorney-client and mental-health privileges.
     Two months later, the Tarrant County trial court granted the plaintiff’s motions on certain records, finding the claimed privileges had been waived and that the cited family code sections were inapplicable to Miller’s testimony and records.
     A three-judge panel with the 2nd District Court of Appeals affirmed Tuesday.
     The Couches failed to show that the trial court abused its discretion in overruling their objections, the court found.
     “We hold that Dr. Miller’s file and opinions are not confidential and that any privileged information has been waived through voluntary disclosure,” Justice Bill Meier wrote for the court. “Accordingly, we will deny the petition.”
     The Texas Legislature’s use of “records and files” in a section of the family code that limits access does not “refer to all records and files in existence everywhere, including the records and files of a person hired as a consultant by defendant counsel in a juvenile proceeding,” the 18-page opinion states.
     Meier also shot down the Couches’ argument that Miller’s testimony at the juvenile trial was not a waiver of privilege.
     The Couches has argued that under the family code “testimony at a juvenile proceeding is and remains confidential.”
     But Meier said the law “does not state that ‘testimony at a juvenile proceeding is and remains confidential,’; it identified subsequent ‘proceedings’ in which evidence adduced at a juvenile trial may be ‘used.'”
     “We reject relators’ broad interpretation,” Meier added.
     It is also possible for Miller to have waived the privileges, the court found, rejecting claims that such power belongs to the party alone.
     “Relators included in the mandamus record an affidavit signed by F.C. stating that he did not authorize Dr. Miller to speak publicaly about his work with E.C.,” the opinion states.
     Meier added that “while F.C. may not have consented to Dr. Miller’s disclosure of otherwise privileged information, E.C. certainly did when he called Dr. Miller to testify at the disposition hearing.”
     The Couches could not be reached for comment Wednesday afternoon.

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