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Confidentiality of Medical Records

JENNIFER MOSHIER: Hello, I’m Jennifer Moshier. I’m with Moshier Law in Scottsdale, Arizona.

DANIEL GAUGHAN: And I’m DJ Gaughan. I’m a psychologist in private practice and a family law practitioner in Central Phoenix.

JENNIFER MOSHIER: And I should have added I’m a lawyer, and we are going to talk today a little bit about confidentiality of medical records and why collaborative process is so different from the traditional litigation system.

DJ, you have worked a number of cases as an expert, correct?

DANIEL GAUGHAN: Yes, for 30 years.

JENNIFER MOSHIER: Thirty years, okay. I have practiced for nearly 20 years. Nearly 20 years of practice will net you a lot of experience with people’s confidential mental-health records.

The difference between collaborative process as I’ve seen it and a traditional litigated system is that your confidential records – and this is true not only for your mental-health records or any other records in collaborative process, it’s true for everything. Everything in collaborative process is private, whereas you always have this risk if you go to court that you’re going to have all of your private information exposed to the public, potentially.

Have you —

DANIEL GAUGHAN: Oh, yes, yeah. You can imagine if you’ve got private mental health records or medical records that you’re concerned about. It’s very difficult to keep them under wraps.

JENNIFER MOSHIER: Now, what about HIPAA? Is it true even with HIPAA?

DANIEL GAUGHAN: Yes. You know better than I because you’re the attorney, but it’s an open-disclosure circumstance if you litigate your divorce, and everything is on the table and everybody gets to see everything from everybody else. So even if you’ve been separated for a while and say you got counseling to deal with the separation and divorce, those records, those things that you thought were private and confidential can be exposed.

JENNIFER MOSHIER: Yeah, absolutely. Have you ever seen a judge fail to sign an order that someone has to produce private, confidential records?

DANIEL GAUGHAN: No, no. You pretty much got to kiss your confidentiality goodbye when you go into litigation.

JENNIFER MOSHIER: In litigation. But collaborative process is different, and we both do collaborative process as well as a number of other professionals who are all featured on bestlegalchoices.com. We’re not all a law firm, we’re not all aligned in any way other than one way: We all believe that collaborative process is the best option for about 80% to 90% of the public. Wouldn’t you agree?

DANIEL GAUGHAN: I would agree. And Jennifer and I have had cases in the litigation process where I’m the neutral person and she represents one side, another attorney represents the other side. And sometimes the cases have gone, she would say, probably favorable for her; other times not so much.


DANIEL GAUGHAN: And so I offer a neutral opinion, and sometimes there’s a winner or a loser in that process. And I much prefer working with attorneys in a collaborative process where I know that both attorneys and both parents are going to be okay, they’re going to have something that works for them and nobody’s going to feel like they got the wrong end of the deal.

JENNIFER MOSHIER: So I think the takeaway is if you’re choosing collaborative process or even considering collaborative process, one thing to think about is there won’t be a winner or a loser, and that’s nice if you could be that loser. Thank you.