Raymond D. Hicks, M.d., Plaintiff-appellee, v. Talbott Recovery System, Inc. A.k.a. Talbott Marsh Recovery System or Talbott Marsh Recovery Center, Anchor Hospital, Barry H. Lubin, M.d., G. Douglas Talbott, M.d., Defendants-appellants, 196 F.3d 1226 (11th Cir. 1999)

This appeal concerns the validity of an alcoholic, physician patient's release used by an addiction recovery facility to send to a state medical licensing board psychiatric and psychological treatment records, including sensitive sexual disclosures. The jury rendered a verdict in the physician's favor, and the district judge denied post-trial motions for judgment as a matter of law and a new trial. We affirm.

In October, 1993, plaintiff-appellee, Dr. Raymond D. Hicks, was employed as an internist by Baylor University Medical Center ("Baylor") in Dallas, Texas, in both its Employee Health Clinic and its Senior Health Center Clinics, where he was Associate Director. When a patient reported smelling alcohol on his breath and after investigation, Dr. Hicks was required to obtain treatment for his admitted alcohol abuse by the Baylor administrative authorities. His staff privileges at the Baylor clinics were not revoked; Dr. Hicks was placed on a medical leave of absence.

For his alcoholism treatment, Dr. Hicks selected defendant-appellant Talbott Marsh Recovery System, Inc. ("Talbott Marsh")¹  in College Park, Georgia. He was admitted to affiliated Anchor Hospital ("Anchor") on October 11, 1993, with admission diagnoses of alcohol and nicotine dependencies. Regarding nonchemical addictions, it was noted in his admission history that Dr. Hicks "may have a problem with a sexual compulsion as manifested by several affairs." Joint Exhibit 16 (Anchor Hospital/Talbott Marsh Recovery System Admission History and Physical Examination, Oct. 11, 1993). Anchor's "Patient's Rights" represented that Dr. Hicks's privacy would be respected and that his treatment records were confidential.²  An initial neuropsychological evaluation revealed that Dr. Hicks had some cognitive impairment that was attributed to his alcohol abuse. Because alcoholism was identified as Dr. Hicks's primary problem, evaluation and potential treatment of any sexual addiction was deferred until his alcohol abuse was under control.³ 

Following his initial evaluation, Dr. Hicks was discharged from Anchor on November 4, 1993, for immediate transfer and residence at proximate Talbott Marsh for his therapeutic treatment. His Anchor discharge summary states final diagnoses of alcohol and nicotine dependencies and dysthymic disorder or depression. For the first time, under the psychological/psychiatric assessment, the discharge summary states that Dr. Hicks had a history of affairs and sex with prostitutes and that he had described his sexual problems as compulsive.

Upon his admission to Talbott Marsh, Dr. Hicks signed two agreements that also were signed by a Talbott Marsh staff member and relate to this case. The first was a Talbott Recovery System Patient Rights agreement, which affirmed the confidentiality of his treatment records,⁴  and the second was the Talbott Recovery System Patient's Responsibilities agreement, which required him to participate in his treatment program actively and candidly.⁵ 

On November 4, 1993, Dr. Hicks also signed in conjunction with a Talbott Marsh staff member a patient orientation agreement stating the parameters of the confidentiality of his treatment records. That document specifies that federal law protects the confidentiality of the treatment records of Talbott Marsh patients and that those records cannot be released absent an authorized release by the patient, a court order, or disclosure to medical personnel in special circumstances, such as a medical emergency.⁶  The confidentiality agreement further states that only a criminal act or a potential criminal act by a patient is unprotected by federal law shielding patient confidentiality.

In a letter dated December 15, 1993, Sharon Pease, Senior Investigator for the Texas State Board of Medical Examiners ("Texas Board"), informed Dr. Hicks that she had been assigned to investigate his "admitted problem with alcohol abuse." Joint Exhibit 3. In addition to commending him for entering treatment for his alcoholism, she requested additional information specifically about his alcohol abuse⁷  and requested that he complete an enclosed release of his Talbott Marsh treatment records. Dr. Hicks sought the advice of defendant-appellant Dr. Barry H. Lubin, Director of Continuing Care at Talbott Marsh, in responding to the request for his treatment records by the Texas Board. Dr. Lubin was the Talbott Marsh staff member responsible for advising physician patients on communications and issues with their respective state licensing boards.

When he met with Dr. Lubin, Dr. Hicks completed the Texas Board release authorization and specified that his treatment records that were to be sent to the Texas Board were for "11 Oct 93 to present." Joint Exhibit 4 at 2 (Appendix A). He signed the release on January 3, 1994, for Dr. G. Douglas Talbott, as the record custodian, to provide the requested records. Dr. Lubin testified that he knew that the Talbott Marsh records coordinator would need a Talbott Marsh release rather than the Texas Board release to send Dr. Hicks's treatment records to the Texas Board, and he asked Dr. Hicks to sign a Talbott Marsh release. While this Talbott Marsh release also could be revoked in writing at any time, it differed from the Texas Board release in that, without revocation, it was effective to release all of Dr. Hicks's treatment records for one year from the date that he signed it.

Instead of signing the release of Dr. Hicks's Talbott Marsh treatment records to his state medical licensing board as only a witness, Dr. Lubin and his assistant completed the release of Dr. Hicks's treatment records to Sharon Pease of the Texas Board for Dr. Hicks for the purpose of "Continuing Care." Joint Exhibit 5 (Appendix B). With vertical slash marks that cover all categories of possible information, including "Psychiatric/Psychological" records, this release, as completed by Dr. Lubin, was effective to send all of Dr. Hicks's Talbott Marsh treatment records to Pease at the Texas Board for one year from the date of Dr. Hicks's signature. Id. Dr. Lubin admitted that:

when Dr. Hicks said it wasn't his handwriting on some of that form, it wasn't. It was mine. I did it. Most physicians don't do those things. I did.

I wrote Continuing Care. I made the slash marks. I put his name on top.

My assistant did chart number, social security number and birth date. My assistant I believe did both dates of January 3rd, 94 .

My slash marks, my intention when I made those slash marks w [as] to release [Dr. Hicks's] entire record because that's what the [Texas] Board requested.

R6-140, 141.

Additionally, Dr. Lubin testified that he "assumed" that Dr. Hicks understood that he was signing a prospective release for treatment records to be created in the future. R7-156. The record does not show that Dr. Lubin reviewed Dr. Hicks's Talbott Marsh treatment records prior to advising him concerning the release of those records or completing the Talbott Marsh release for him. Dr. Lubin, the Talbott Marsh staff member specifically responsible for advising physician patients regarding issues relating to their state licenses, testified that state licensing boards are more sensitive to sexual issues than they are to chemical dependency issues. Nevertheless, he also testified that he did not believe that he discussed with Dr. Hicks "the concerns that one would have if a Board was privy to psychosexual information as opposed to just alcohol and drug information," although Dr. Hicks's sexual compulsion was noted in his patient history.⁸  R7-164. Because the Talbott Marsh prospective release encompassed not only treatment records that existed on the date that the patient signed it but also those produced for a year from that date, Dr. Hicks's Talbott Marsh release as completed by Dr. Lubin was operative to send his treatment records to Sharon Pease at the Texas Board for the next year, which included his subsequent evaluations and potential treatment for his sexual compulsion. Nonetheless, Dr. Lubin did not explain this aspect of the Talbott Marsh release to Dr. Hicks, even though Dr. Hicks had specified in his handwriting on the Texas Board release that his treatment records could be sent to the Texas Board only through January 3, 1994,⁹  and the Texas Board had requested treatment records relating solely to his alcoholism.¹⁰ 

In contrast to Dr. Lubin's view of the requested release of treatment records, Dr. Hicks testified that, based on his designatedlimitation on the Texas Board release, that he

authorized Talbott Marsh to release information they had regarding my treatment from 11 October 93 which was the date of my admission to Anchor Hospital to the present time which I perceived to be the date 1-3-1994, and I believed that that was the only information that I was allowing them to release, either by this form or by the other form which you have seen.

R6-58. When shown the Talbott Marsh release purportedly executed by him on January 3, 1994, Dr. Hicks could identify only his signature and testified that the "other handwriting" and "slash marks" on the release were not his. Id. He testified that he did not recognize the Talbott Marsh release being "in its current form when I signed it." Id. at 59. Significantly, Dr. Hicks did not realize that the Talbott Marsh release was prospectively operative for one year:

That was not my understanding at all. My understanding of this was that the Texas Board needed to know something about my treatment, and that Dr. Lubin was a person whom I contacted about this, that Dr. Lubin was aware of the issues that I was dealing with, and that he would, it was my understanding that he would not send anything which would be harmful to me.

Id. (emphasis added).

Rather than responding to the specific questions regarding Dr. Hicks's alcoholism that Sharon Pease of the Texas Board had requested in her December 15, 1993, letter to Dr. Hicks, Dr. Lubin sent her a letter dated January 6, 1994, that only verified that Dr. Hicks was admitted to Anchor/Talbott Marsh on October 11, 1993, and that he was being treated for chemical dependence with no established discharge date. Dr. Lubin represents in his letter that it was written at Dr. Hick's request and with his permission. Yet, no copy to Dr. Hicks is shown.

By the end of January, 1994, Dr. Hicks had progressed sufficiently in his treatment for his primary problem, alcoholism, that a full evaluation of his secondary problem, sexual compulsion, could be accomplished for the purpose of determining a course of treatment.¹¹  Dr. Richard R. Irons, a psychiatrist specializing in the evaluation and treatment of sexual disorders, performed a psychosexual assessment of Dr. Hicks. During that evaluation, Dr. Irons learned that Dr. Hicks's consensual sexual relationships with various individuals included patients. Dr. Irons documented Dr. Hicks's revelations in progress notes that became a part of Dr. Hicks's Talbott Marsh patient history.

In a letter dated February 1, 1994, the Texas Board requested Dr. Hicks's Talbott Marsh medical records within two weeks so that a complaint alleging a violation of the Medical Practice Act could be evaluated.¹²  At that time, the only information that the Texas Board had from Talbott Marsh concerning Dr. Hicks was Dr. Lubin's January 6, 1994, letter. Dr. Hicks again went to see Dr. Lubin for advice in responding to this letter, and he testified that he "was quite concerned because the information regarding my psychosexual problems had been discussed with Dr. Irons." R6-62.

Dr. Lubin called in his assistant and dictated a responsive letter to Sharon Pease in Dr. Hicks's presence. That letter states that Dr. Hicks was transferred to Talbott Marsh on November 4, 1993, for treatment of his chemical dependence and that he was cooperating with the treatment program; no copy to Dr. Hicks is shown. Dr. Lubin also asked Dr. Hicks to complete another Talbott Marsh release. Although the release was the same form that Dr. Hicks had signed before, the information to be sent pursuant to this February 24, 1994, release was different. This time, Dr. Hicks checked only the "Correspondence" category and specified "letter from B. Lubin," which was for the purpose of "Informing the State Board of treatment to date." Joint Exhibit 7 (Appendix C). Dr. Hicks testified that he specifically asked Dr. Lubin if anything other than the dictated letter would be sent to the Texas Board, and Dr. Lubin replied: "That's it."¹³  R6-64. Furthermore, after his psychosexual evaluation with Dr. Irons had commenced, Dr. Hicks asked Cliff Tillery, his primary therapist with whom he had group therapy, whether any of the psychosexual information would be sent to the Texas Board, and Tillery said that it would not be reported to the Texas Board but that Dr. Hicks needed to attend sexual addiction classes.¹⁴ 

Subsequently, Dr. Irons and Tillery determined that Dr. Hicks needed to go to a facility specializing in sexual addiction to deal with that problem. Dr. Hicks chose Charter Hospital ("Charter") in Plano, Texas, to be near his home while being treated for his sexual addiction. Dr. Hicks was discharged from Talbott Marsh for transfer to Charter on March 19, 1994, with final diagnoses of alcohol and nicotine dependencies, dysthymic disorder, and psychosexual disorder with addictive features. Following his treatment at Charter for sexual addiction, he was to return to Talbott Marsh for final discharge.

The Texas Board sent a March 28, 1994, letter requesting Dr. Hicks's treatment records that was identical to the February 1, 1994, letter, except that this letter was addressed to Dr. G. Douglas Talbott and stamped "Second Request." Joint Exhibit 10. Pursuant to this request, Carolyn Perkins, the Talbott Marsh medical records coordinator, copied and sent all of Dr. Hicks's treatment records, including his psychosexual therapy with Dr. Irons, to the Texas Board on April 1, 1994, based upon the January 3, 1994, Talbott Marsh release signed by Dr. Hicks but completed by Dr. Lubin and his assistant.¹⁵  Although Perkins, who did not have a degree or accreditation as a medical records technician or administrator, testified that she regularly sought the advice of Dr. Lubin and medical records supervisors regarding the particular treatment records to send pursuant to a request for a patient's records, she consulted no one before sending Dr. Hicks's entire treatment records to the Texas Board. She testified that, because the January 3, 1994, release was signed by Dr. Lubin as the witnessing staff member, she "assum [ed]" that he had discussed the release with Dr. Hicks.¹⁶  R7-215. Dr. Hicks was not informed by Perkins or anyone at Talbott Marsh that his entire medical records had been sent to the Texas Board.

After receiving all of Dr. Hicks's Talbott Marsh medical records, Sharon Pease visited him while he was at Charter for treatment of his sexual addiction. She informed him that the Texas Board was aware that he had engaged in sex with patients, which was revealed in his Talbott Marsh treatment records. Dr. Hicks was "totally stunned" because he understood from Dr. Irons and Tillery that his psychosexual records would not be transmitted to the Texas Board, since its interest was in his treatment for alcoholism.¹⁷  R6-73.

Pursuant to a subpoena obtained by the Texas Board, Charter, with no notice to Dr. Hicks, sent all of his psychosexual treatment records from that facility to the Texas Board approximately eleven weeks after Talbott Marsh had sent its medical records for Dr. Hicks.¹⁸  Similar to the Talbott Marsh records relating to Dr. Hicks's treatment for his psychosexual disorder, the Charter records disclosed that Dr. Hicks's sexual addiction had included sex with patients. Following its investigation into Dr. Hicks's professional conduct, the Texas Board issued on August 19, 1994, an order specifying the conditions of his practice of medicine in Texas to which Dr. Hicks agreed. These restrictive terms included limiting his practice to institutional settings, being monitored by a physician acceptable to the Texas Board, requiring a chaperone to be present for examination of all female patients, and submitting a copy of the order to all hospitals in which he had privileges.¹⁹  Dr. Hicks's signing this Agreed Order, a public record, was the only way that the Texas Board would permit him to retain his medical license.²⁰ 

Following his discharge from Charter on May 6, 1994, Dr. Hicks was under the care and treatment of his referring psychiatrist specializing in addictions in Dallas, and he attended Alcoholics Anonymous and sexual addiction programs there. On October 24, 1994, Dr. Hicks was re-admitted to Talbott Marsh to be evaluated regarding overcoming his alcohol and sexual addictions for the purpose of re-entering his medical practice. As stated in Dr. Hicks's Talbott Marsh reassessment performed on October 25, 1994, his alcohol dependence and his sexual disorder were "in remission," and his dysthymic condition was "under treatment" with medication. Joint Exhibit 17 at 342, 343. The evaluating staff psychiatrist made the following assessment and recommendation:

This man [Dr. Hicks] has a good program of recovery going for him and I personally would give him advocacy to return to the practice of medicine. He is looking at doing some consultations for [his referring psychiatrist specializing in addictions] and probably will be able to break into the practice of medicine quite slowly. He needs to be cautioned about working more than 40 hours a week for the first year of returning to practice. Again, I would advocate for his returning to the practice of medicine.

Id. at 343 (emphasis added).

Dr. Hicks was discharged from Talbott Marsh on October 29, 1994, as a sufficiently recovered patient to re-enter his medical practice. His primary therapist, Tillery, and Dr. Irons, his sexual addiction psychiatrist, signed his discharge summary, which states as his final diagnoses: "Alcohol dependence" and "Paraphilia with addictive, exploitive features." Id. at 299. The final assessment was that Dr. Hicks "appears committed to practicing an ongoing program of recovery and is willing to utilize the support available for him at home." Id. In his capacity as Director of Continuing Care, Dr. Lubin wrote Dr. Hicks's referring psychiatrist specializing in addictions and with whom Dr. Hicks would continue his recovery therapy a letter on October 31, 1994, and informed him that Dr. Hicks had completed his program and had been discharged from Talbott Marsh. Dr. Lubin further informed this doctor that Dr. Hicks "has been cleared to return to practice according to Board Order and with recommendations from Dr. Richard Irons" and that, in his Continuing Care Contract, Dr. Hicks identified this doctor as his "primary monitoring professional." Id. at 363.

Despite his clearance from Talbott Marsh to re-enter his medical practice under rigidly specified conditions, Dr. Hicks could not return to his former job at Baylor because of the requirements of the public, Texas Board order. Dr. Hicks's attempts to locate employment at any other hospital in the immediate Dallas area also were unsuccessful. The only medical employment that he was able to find anywhere proximate to his residence and continuing therapy was a temporary contract job in a state prison 150 miles from his home. The commuting, work, and substantially reduced income made this job unworkable after three months. Because of his unemployment and the expenses associated with maintaining his medical license with the Texas Board, Dr. Hicks eventually relinquished it. Loss of his livelihood caused him deep depression and emotional upheavals.

On November 17, 1995, Dr. Hicks sued Talbott Marsh, Anchor, Dr. Lubin, and Dr. Talbott in federal court in the Northern District of Georgia. His complaint, based on diversity jurisdiction, alleged federal and state causes of action, including negligence, breach of fiduciary duty, breach of contract, invasion of privacy, and wrongful disclosure of privileged information. He sought $10,000 in general and compensatory damages and $1,000,000 in special damages for lost wages and earning capacity.²¹ 

Following trial, the jury returned a verdict in favor of Dr. Hicks in the amount of $200,000. Talbott Marsh moved for judgment as a matter of law or, alternatively, for a new trial. The district judge denied these motions. Talbott Marsh and Dr. Lubin appeal these denials and pursue their supporting arguments.

Appellants argue that judgment as a matter of law should have been granted to them with respect to sending Dr. Hicks's treatment records relating to his psychosexual therapy to the Texas Board because he signed the Talbott Marsh release that encompassed those records. We review the denial of a motion for judgment as a matter of law de novo and apply the same standards used by the district court. See Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir. 1999). The evidence supporting the verdict is considered in favor of the nonmoving party as are all reasonable inferences. See id.

Georgia law protects as privileged confidential communications between a psychiatrist²²  or licensed psychologist²³  and a patient. See O.C.G.A. 24-9-21(5) & (6), 43-39-16; Wiles v. Wiles, 448 S.E.2d 681, 682 (Ga. 1994). For these privileges to attach, the patient voluntarily must have sought the assistance of the psychiatrist or psychologist. See Bobo v. State, 349 S.E.2d 690, 691 (Ga. 1986); In re L.H., 511 S.E.2d 253, 257-58 (Ga. Ct. App. 1999); cf. Christenson v. State, 402 S.E.2d 41, 46 (Ga. 1991) (recognizing that these privileges are inapplicable when the psychiatrist or psychologist is appointed by the court to examine the patient). Additionally, these confidentiality privileges exist only when professional treatment was given or contemplated. See Manning v. State, 499 S.E.2d 650, 651 (Ga. Ct. App. 1998) (recognizing that the psychiatrist-patient and psychologist-patient privileges materialize only when a professional relationship was "actually contemplated or formed or psychological treatment rendered"). Unless waived, these confidentiality privileges are absolute. See Scroggins v. State, 514 S.E.2d 252, 254 (Ga. Ct. App. 1999).

"The object of the [psychiatrist-patient] privilege is to encourage the full trust of the patient so as to persuade him to reveal his innermost feelings and private acts so that the psychiatrist may give the most effective treatment."²⁴  Mrozinski v.Pogue, 423 S.E.2d 405, 408 (Ga. Ct. App. 1992). This privilege protects "not merely words spoken, but 'disclosures made in confidence.'" Id. at 409 (citation omitted). " [A]s a matter of public policy, psychiatrist-patient communications are to be privileged and are to remain privileged even though the patient's 'care and treatment or the nature and extent of his injuries (have been put) at issue in any civil or criminal proceeding.'" Plunkett v. Ginsburg, 456 S.E.2d 595, 597 (Ga. Ct. App. 1995) (quoting O.C.G.A. 24-9-40(a)). Thus, "Georgia law has an exceedingly strict view as to what are privileged 'communications'" with respect to disclosures made by a patient to a treating psychiatrist.²⁵  Mrozinski, 423 S.E.2d at 409.

Concomitantly, Georgia law considers a relationship confidential "where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith." O.C.G.A. 23-2-58; Parello v. Maio, 494 S.E.2d 331, 333 (Ga. 1998). " [S]ome confidential relationships are created by law, some by contract, and others may be created by the facts of a particular case." Trulove v. Woodmen of the World Life Ins. Soc'y, 419 S.E.2d 324, 327 (Ga. Ct. App. 1992). "All the law requires is the showing of a relationship in fact which justifies the reposing of confidence in one party by another." Remediation Servs., Inc. v. Georgia-Pacific Corp., 433 S.E.2d 631, 635 (Ga. Ct. App. 1993). Because "a party to a confidential or fiduciary relationship may rely upon representations made" therein, Dover v. Burns, 196 S.E. 785, 789 (Ga. 1938), such a relationship of "utmost good faith and loyalty" is breachedand damages are recoverable when the fiduciary uses information provided in the confidential relationship to the detriment of the one to whom the duty is owed, Tante v. Herring, 453 S.E.2d 686, 688 (Ga. 1994).

Since the psychiatrist-patient privilege is absolute, it "cannot be waived, absent some express intentional act to do so" by the patient. Jones v. Abel, 434 S.E.2d 822, 824 (Ga. Ct. App. 1993); see Freeman v. State, 396 S.E.2d 69, 70 (Ga. Ct. App. 1990). In keeping with the strong public policy that is the impetus for the psychiatrist-patient and psychologist-patient privileges, the relevant Georgia statute in pertinent part likewise protects psychiatric and psychological records:

A clinical record for each patient shall be maintained. Authorized release of the record shall include but not be limited to examination of the original record, copies of all or any portion of the record, or disclosure of information from the record, except for matter privileged under the laws of this state. Such examination shall be conducted on hospital premises as determined by the facility. The clinical record shall not be a public record and no part of it shall be released except:

A copy of the record may be released to any person or entity designated in writing by the patient . . . .

O.C.G.A. 37-7-166(a) (1) (emphasis added). This statute prohibits the "disclosure of clinical records of patients receiving treatment in hospitals for substance abuse"; the only way that these records can be released is when "such a designation was made in writing by the patient." Mrozinski, 423 S.E.2d at 410; see 42 U.S.C. 290dd-2(b) (1) (permitting the disclosure of substance abuse treatment records of patients "with the prior written consent of the patient"); 42 C.F.R. pt. 2, 2.3 & subpt. C (1993)²⁶  (permitting the disclosure of alcohol and drug abuse treatment records "with written patient consent").²⁷  "'Waiver is a voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party otherwise would have enjoyed.'" Jordan v. Flynt, 240 S.E.2d 858, 863 (Ga. 1977) (per curiam) (emphasis added) (citation omitted); see Jones, 434 S.E.2d at 824 (using the voluntary relinquishment of a known right or benefit definition of waiver in the context of a psychiatrist-patient relationship).

Applying these principles to the facts of this case, we must determine whether Dr. Hicks had a confidential relationship that was breached under Georgia law. Although Baylor required Dr. Hicks to receive treatment for his alcohol addiction, he was permitted to select the facility for this treatment. Dr. Hicks chose Talbott Marsh principally for its purported ability to help physicians suffering from various addictions to return successfully to their medical practices. Cliff Tillery, a licensed psychologist, was Dr. Hicks's primary therapist from the outset of his treatment at Talbott Marsh. Tillery counseled Dr. Hicks in connection with his alcoholism initially and, subsequently, in group therapy with respect to his sexual addiction. Dr. Irons, a psychiatrist with an expertise in sex therapy, was associated specifically to counsel Dr. Hicks regarding his sexual addiction. Dr. Irons and Tillery determined that Dr. Hicks needed specialized treatment at another facility for his sexual addiction, which resulted in his transfer to Charter prior to his final discharge from Talbott Marsh. Dr. Hicks's volitional selection of Talbott Marsh and its therapists together with his actual treatment at that facility are sufficient under Georgia law for the psychiatrist-patient and psychologist-patient privileges to have attached.

Believing that his confidentiality was protected, the public policy basis underlying these privileges and addiction recovery therapy, Dr. Hicks revealed to these therapists, albeit more specifically to Dr. Irons, the details of his sexual addiction, including sex with patients. The record shows that Dr. Hicks trusted the assurances of both of these therapists and believed that the sexual disclosures that they elicited from him would not be revealed to the Texas Board.²⁸  Moreover, his revelation of sex with patients occurred after Dr. Hicks signed the Texas Board release of his Talbott Marsh treatment records, which he specifically limited to his medical records from October 11, 1993, to January 3, 1994.²⁹ 

It is important to recognize that Dr. Hicks was sent by Baylor and admitted to Talbott Marsh for the treatment of his alcohol addiction. This was the focus of the Texas Board, which licensed him to practice medicine in Texas, until all of his Talbott Marsh treatment records, including his treatment for sexual addiction, were sent to the Texas Board.³⁰  Receipt and review of Dr. Hicks's entire Talbott Marsh treatment records caused the Texas Board to become aware of Dr. Hicks's sexual addiction, specifically, his sex with patients. This revelation resulted in the Texas Board's order that narrowly circumscribed Dr. Hicks's medical practice and, ultimately, foreclosed his ability to practice medicine proximate to his home. Given the psychiatrist-patient and psychologist-patient privileges that are operative in this case, we must decide whether the Talbott Marsh January 3, 1994, medical records release signed by Dr. Hicks was lawfully valid authority to send all of his treatment records, including his psychosexual therapy, to the Texas Board.

Dr. Hicks sought the advice of Dr. Lubin, the Talbott Marsh staff member who specialized in counseling physician patients in addiction recovery, as to how to respond to the letters from the Texas Board requesting his treatment records. On the Texas Board release, Dr. Hicks handwrote that he authorized only his Talbott Marsh treatment records from October 11, 1993, the date of his admission there, until January 3, 1994, the date that he signed the release, to be sent. Those records do not disclose Dr. Hicks's sexual encounters with patients because his psychosexual therapy, which elicited that fact, had not commenced at that time.

Dr. Lubin explained to Dr. Hicks that the Talbott Marsh records coordinator would need a Talbott Marsh release to send his treatment records to the Texas Board. The internal, Talbott Marsh release that Dr. Hicks signed was completed by Dr. Lubin and his assistant. Dr. Lubin's vertical slashes marking all categories of treatment records, including psychiatric/psychological records, on the Talbott Marsh release, and not Dr. Hicks's limited designation, was the direction relied upon by Carolyn Perkins, the Talbott Marsh records coordinator, when she sent Dr. Hicks's entire Talbott Marsh treatment records to the Texas Board on April 1, 1994.

Dr. Lubin purportedly was specially knowledgeable regarding state medical licensing boards and, ironically, he had not allowed Talbott Marsh to disclose his own sexual addiction treatment records to his state medical board when he was a patient there. Nevertheless, there is no evidence in the record that Dr. Lubin ever reviewed Dr. Hicks's medical records to see if they contained sensitive sexual disclosures related in therapy and counseling sessions before he made the vertical slashes on the Talbott Marsh release indicating that all of Dr. Hicks's Talbott Marsh treatment records were to be sent to the Texas Board. Furthermore, as Director of Continuing Care at Talbott Marsh, he maintained contact with Dr. Hicks in his psychosexual therapy at Talbott Marsh, Charter, and thereafter. Dr. Lubin well knew that the Talbott Marsh release was valid for one year from the date that a patient signed it and that a patient could revoke his release of treatment records at any time. Yet, there is no evidence that Dr. Lubin informed Dr. Hicks of the sensitivity of the disclosure of sexual addiction to a state medical licensing board at the time that Dr. Hicks signed the blank release form for his treatment records or thereafter, when his therapy with Dr. Irons commenced later in January, 1994, or he was transferred from Talbott Marsh to Charter for further treatment of his sexual addiction prior to his final discharge from Talbott Marsh. At any of these junctures, Dr. Hicks could have revoked the January 3, 1994, release and signed another, more specific Talbott Marsh treatment records release.

Significantly, Dr. Hicks had a confidential or fiduciary relationship with Tillery and Dr. Irons regarding his psychosexual therapy that was breached by Talbott Marsh and, specifically, by Dr. Lubin. He disclosed his sexual encounters with patients in the protected and privileged context under Georgia law of psychiatric/psychological counseling and therapy. He had assurances from these therapists that his consensual sex-with-patients revelation would not be sent to the Texas Board prior to divulging this information in the therapy context for the purpose of overcoming his sexual addiction generally.

Realizing that he needed help in dealing with his sexual compulsion and desiring this treatment while he was at Talbott Marsh for his alcohol addiction, Dr. Hicks specifically sought Dr. Lubin's counsel as to how he should respond to the Texas Board's request for his treatment records prior to his commencing his psychosexual therapy. Because of his severe alcohol addiction, Dr. Hicks was diagnosed as having some cognitive impairment in his intellectual functioning. In addition to undergoing chemical detoxification for his alcohol addiction and medicinal treatment for his depression, Dr. Hicks was susceptible to direction because he was disturbed about the threat to his medical license, which was necessary for his livelihood. He testified that he believed that the Talbott Marsh release would cover the same time period that he had designated on the Texas Board release. Dr. Hicks, the vulnerable recovering alcoholic, Talbott Marsh patient, relied on his therapists' assurances and on Dr. Lubin's expertise and followed his advice with respect to the Talbott Marsh release, which ultimately terminated Dr. Hicks's medical practice instead of restoring it.

Dr. Lubin's innocuous response letters to the Texas Board, the second one of which was dictated in Dr. Hick's presence, further lulled him into believing that Dr. Lubin, the Talbott Marsh expert in communications between physician patients and their state medical licensing boards, was protecting him while he was at Talbott Marsh and that his recovery therapy or his medical license would not be jeopardized by following Dr. Lubin's advice. The Talbott Marsh release plainly allowed for selection of categories of treatment records to be sent pursuant to a request for records. Yet, Dr. Lubin designated that all of Dr. Hicks's Talbott Marsh treatment records were to be sent to the Texas Board without explaining to Dr. Hicks that he could specify particular treatment records and allowing him to make that election.

Although Dr. Hicks's Talbott Marsh therapists determined that he was sufficiently recovered to return to his medical practice as many physician patients preceding him, like Dr. Lubin, had done without full disclosure of all of their Talbott Marsh treatment records, Dr. Hicks ultimately was denied that opportunity. The disclosure of his sex with patients, which surfaced in his privileged psychiatric/psychological therapy with Dr. Irons and Tillery, prevented his returning to his previous medical practice. In effect, Talbott Marsh, through Dr. Lubin's failure to obtain an informed consent from Dr. Hicks for release of all of his Talbott Marsh treatment records, undermined the purpose of his recovery therapy, to which he had devoted a year of his life in sincere, cooperative work.

The jury concluded that Dr. Lubin and Talbott Marsh had breached a fiduciary duty that they owed to Dr. Hicks and that merely his signature on the Talbott Marsh release form, subsequently completed by Dr. Lubin and his assistant, was not a knowing waiver of his rights regarding the release of his Talbott Marsh treatment records to the Texas Board. Therefore, the release of his Talbott Marsh treatment records, based on a form that he did not complete and about which he was not fully informed as to its consequences, was unauthorized. Drawing all reasonable inferences in favor of Dr. Hicks, we find ample evidence in this record to support the jury's verdict, which shows careful consideration of the value of Dr. Hicks's loss of his livelihood as reflected in the award, an amount considerably less than the damages requested in his complaint.³¹ 

Appellants alternatively argue that the district judge improperly denied their motion for new trial because the judge incorrectly excluded evidence relevant to causation and damages and, consequently, did not instruct the jury on proximate cause. This argument relates to Charter's release of Dr. Hicks's treatment records containing substantially the same information regarding his sexual addiction, including sex with patients, to the Texas Board pursuant to a subpoena.³²  To have granted appellants' motion for a new trial, the district judge would have had to have determined "the verdict contrary to the great weight of the evidence; we will reverse the denial of a motion for a new trial only for an abuse of discretion." Richards v. Michelin Tire Corp., 21 F.3d 1048, 1052 (11th Cir. 1994). "Motions for new trial on the basis of erroneous and prejudicial jury instructions are committed to the discretion of the trial court and reviewed to ascertain whether there has been a clear abuse of that discretion." Christopher v. Cutter Laboratories, 53 F.3d 1184, 1190 (11th Cir. 1995).

Prior to trial, Dr. Hicks filed a motion in limine seeking the exclusion from the trial of any reference to the fact that his treatment records from Charter were sent to the Texas Board. The district judge granted the motion because Talbott Marsh's sending Dr. Hicks's entire treatment records to the Texas Board was not remote in time from his alleged injuries. The judge also determined that, because the alleged harm was the foreseeable result of Talbott Marsh's conduct, no proximate cause issue was raised. The judge reasoned that, when there are two separate causes-in-fact of a single injury, either of which alone would have sufficed to cause the alleged harm, it is inherently unfair to permit "both guilty parties to avoid liability by pointing to each other." R4-53-2. The judge concluded that, since Talbott Marsh could not escape liability by claiming that Charter's conduct was an "intervening cause" of Dr. Hicks's injuries, "the fact that Charter released plaintiff's records is irrelevant to this action." Id. He also noted that admission of evidence about the subsequent release of Charter records would confuse the issues and unfairly prejudice Dr. Hicks's case. Consequently, the jury was not charged on proximate or intervening cause.

" [W]hether proximate cause exists in a given case is a mixed question of law and fact." Atlanta Obstetrics & Gynecology Group, P.A., 398 S.E.2d 16, 17 (Ga. 1990). "Although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases." McAuley v. Wills, 303 S.E.2d 258, 260-61 (Ga. 1983); see Harrison v. Jenkins, 510 S.E.2d 345, 346 (Ga. Ct. App. 1998) (en banc) (recognizing that "there is a limit" to the jury's determining proximate cause for an injury sustained, which is in a case where the facts are obvious and uncontroverted, and the judge decides it). "The decision may be made by the trial judge or appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of 'foreseeability') to the facts." Atlanta Obstetrics & Gynecology Group, 398 S.E.2d at 17; see Western Stone & Metal Corp. v. Jones, 348 S.E.2d 478, 480 (Ga. Ct. App. 1986) (en banc) (" [W]here the jury can draw but one reasonable conclusion, the issue is plain, palpable, and undisputed and should be ruled upon as a matter of law.").

"While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act."

Harrison, 510 S.E.2d at 346 (citation omitted).

Dr. Hicks's Talbott Marsh treatment records were sent to the Texas Board on April 1, 1994, approximately eleven weeks before the Charter records were sent pursuant to a subpoena obtained by the Texas Board. The Texas Board's order quotes liberally from Dr. Hicks's Talbott Marsh treatment records. The direct connection between the unauthorized release of Dr. Hicks's confidential, Talbott Marsh treatment records and the Texas Board order is obvious. Talbott Marsh cannot escape liability for breaching the duty of confidentiality that it owed to Dr. Hicks regarding his treatment records by shifting blame to a later tortfeasor, Charter.

Furthermore, the evidence does not support the introduction of an intervening cause, when it was Talbott Marsh that effectively terminated Dr. Hicks's medical career by its unauthorized release of his treatment records disclosing his psychosexual therapy. Indeed, the Texas Board would not have requested Dr. Hicks's Charter treatment records if Talbott Marsh had not sent to the Texas Board his psychosexual therapy, revealing his sexual encounters with patients and showing his transfer to Charter for more specialized sexual addition treatment. Significantly, Talbott Marsh's breach of its fiduciary duty of confidentiality to Dr. Hicks not only led to the Texas Board's foreseeable request for Dr. Hicks's Charter treatment records, but also those records were substantively identical to his sexual revelations in his Talbott Marsh psychiatric/psychological treatment records for his sexual addiction.³³ 

As the district judge explained: " [B]ecause defendants admit that Charter released the 'same information' to the state board that defendants released, it is clear that all of the harm sustained by plaintiff would have resulted from defendants' conduct alone, regardless of Charter's later acts." R5-78-4. The injection of the Charter release of Dr. Hicks's medical records into the case would only have served to mislead and confuse the jury. Appellants had a legal duty to protect the confidentiality of Dr. Hicks's Talbott Marsh treatment records. See O.C.G.A. 37-7-166(a) (1). As the district judge concluded: "The fortuity of Charter Hospital's subsequent incompetence is simply irrelevant" to the liability of Talbott Marsh and Dr. Lubin. R5-78-3. The judge did not abuse his discretion by not instructing the jury on proximate or intervening cause in accordance with his ruling on the motion in limine.

In this appeal, appellants challenge the jury award to Dr. Hicks for breach of the duty of confidentiality regarding his psychosexual treatment records. As we have explained, the jury's verdict based on unauthorized release is supported by the evidence, and the motions for judgment as a matter of law and for a new trial properly were denied. Accordingly, the jury verdict is AFFIRMED.

BRIGHT, Senior Circuit Judge, concurs in the result. [Tabular or Graphical Material Omitted] [Tabular or Graphical Material Omitted] [Tabular or Graphical Material Omitted] [Tabular or Graphical Material Omitted]