Guest Post submitted by: Steven Coren, Partner (Kerstein, Coren & Litchtenstein LLP). Attorney E. Steven Coren has more than 40 years of experience representing individuals and families in civil cases.
It’s not often attorneys can do justice while at the same time prevailing on a legal issue, particularly in a breach of privacy/emotional distress case. Recently, Attorney Steven Coren was able to accomplish both when a client was referred to Kerstein Coren & Lichtenstein LLP through the Boston Bar Association’s Lawyer Referral service. The client was a nurse at a major hospital who was hospitalized briefly in 2001 for psychiatric issues relating to her ailing marriage. She told a heart-rending tale that occurred in 2012 when she brought a post-divorce contempt action against her ex-husband over a parenting dispute involving their minor children.
During the contempt action, the sister-in-law of the plaintiff’s ex-husband accessed the plaintiff’s confidential 2001 psychiatric hospitalization records without the plaintiff’s knowledge or authorization and provided the records to the ex-husband. The sister-in-law accessed the records through her employment at a medical clinic.
The ex-husband orally communicated the contents of the plaintiff’s 2001 discharge diagnoses to a guardian ad litem (GAL), a psychotherapist appointed to investigate the parenting issue in the contempt proceeding. The ex-husband did not have the plaintiff’s consent or knowledge to obtain and communicate the information. The GAL wrote down the discharge diagnoses and included it in her report to the Court without the plaintiff’s knowledge or consent. As a Category F appointment, the GAL was required to obtain the plaintiff’s written consent to access this information and to notify the plaintiff of her intent to use it. The GAL did neither.
The plaintiff learned about the access to her confidential psychiatric records at a subsequent contempt hearing in open court. As a result of the invasion of her privacy, she was subjected to continuing embarrassment, horror, shame, anxiety, despair and dread. She also experienced physical symptoms including hair loss, lack of sleep and loss of appetite.
“I normally would not take a garden-variety HIPAA or infliction of emotional distress case because jury verdicts for emotional harm tend to be extremely low,” said Coren “However, I thought this case had great optics for building outrage among the jurors as the invasion of privacy and infliction of emotional distress were intentional on the part of the ex-husband and the sister-in-law, and the GAL’s conduct was unprofessional as well as illegal.” Coren admits he took the case with his heart as well as with his head. “I felt I could right a wrong as well as prosecute a legal claim for my client who could not afford to pay an attorney.” Coren agreed to take the case on a contingency agreement with no expectation that he would be compensated as there was no insurance available. “I feel that every so often it is my obligation as a legal professional to seek justice and help someone who cannot otherwise afford to pursue a claim.”
The defendants ignored all invitations to settle and a three-day jury trial was held in Boston Municipal Court in April 2019. The voir dire process was heavily utilized by Coren and was instrumental in selecting a jury that he felt was fair and impartial. The voir dire disclosed bias on the part of several prospective jurors due to the plaintiff’s psychiatric hospitalization, the reluctance of some to believe emotional distress had any monetary value and the insistence of some in applying a much higher standard than a preponderance of the evidence, and these jurors were struck for cause. Interestingly, Coren approved the inclusion of two ex-convicts on the jury during voir dire because he sensed empathy toward his client’s situation. During the damages phase of the trial, he emphasized to these jurors that fear, dread and anxiety are not controllable emotions and are very real to the person suffering from them.
At the conclusion of the trial, the jury found the sister-in-law and ex-husband acted intentionally in inflicting emotional distress and invading the plaintiff’s privacy. The jury found them and the GAL liable for damages, which totaled $92,800 – an extraordinary amount for emotional damages
The verdict by six citizens was an incredible validation to the plaintiff who endured years of litigation pursuing the case. Coren’s reward was seeing the tears of relief and the vindication on his client’s face. She is grateful to the Boston Bar Association for referring her to an attorney who stuck with her and made sure she got the justice she deserved.