'Wrongful death' case still uncertain

Civil lawsuit seeks Bustamante's medical records

Alyssa Bustamante is shown in court on Dec. 8, 2009.

Alyssa Bustamante is shown in court on Dec. 8, 2009. Photo by The Associated Press.

No trial date has been set in Patricia Preiss’ “wrongful death” lawsuit against Alyssa Bustamante, Pathways Behavioral Healthcare and two of its mental health care providers.

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Elizabeth Olten is shown in a family photograph. Olten was killed Oct. 21, 2009, when she was 9 years old, by 15-year-old neighbor Alyssa Bustamante.

And there was no indication during a nearly hour-long hearing Wednesday that the case ever will get to trial.

Cole County Circuit Judge Jon Beetem gave attorneys for both sides more time to comment on the effects that several previous court rulings might have on each side’s efforts to get pre-trial information from the other.

Preiss filed the suit last October, three years after her daughter — Elizabeth Olten, 9 — was murdered near her home on Lomo Drive, south of U.S. 50 in St. Martins.

Defendants in the suit are:

• Alyssa Daileen Bustamante, now 19, who is serving a life sentence after pleading guilty to second degree murder in Olten’s death, plus 30 years for armed criminal action, at the state’s Women’s Eastern Reception and Diagnostic Center, Vandalia.

She was 15 on Oct. 21, 2009, when she strangled and stabbed Olten, a neighbor and friend of Bustamante’s younger sister.

• Pathways Community Behavioral Healthcare and two of its employees.

The nine-page lawsuit by attorney Matthew P. Diehr argued Pathways and its employees failed to warn Olten and her family that Bustamante was a threat to Olten’s life.

Wednesday’s hearing focused on Diehr’s complaint that Pathways has blocked his efforts to get Bustamante’s medical records — as well as a counter-complaint from Pathways’ attorney, Meagan L. Patterson of Overland Park, Kan., that Diehr had not been responsive to their requests for information.

Cole County Circuit Judge Jon Beetem began Wednesday’s hearing by noting that Pathways’ attorneys really have no legal choice but to protect the privacy of their patients’ medical records.

“Medical providers are required to assert privilege,” Beetem said. “It’s not like they are trying to be obstructive. ...

“What I really want to focus on is the waiver issue (which) is in my ballpark. That’s a factual determination that I can make.”

Beetem noted Bustamante herself could waive the privacy issue, but her lawyers haven’t done so to date.

Diehr argued that Bustamante waived her right to privacy of her Pathways records when she had her counselor, suit defendant Ron Wilson, testify on her behalf at the February 2012 sentencing hearing.

Diehr pointed to a 1993 Missouri Supreme Court ruling, saying it “doesn’t say that a waiver is full only within certain litigation. ... Once there’s been a disclosure in any form, there no longer is confidentiality.”

But, Patterson countered, the legal precedent is on her side. A waiver of the doctor-patient confidentiality “only applies to the relevant litigated issues — it’s always limited to that (specific) cause of action,” she said.

And, under a ruling in at least one case, she said, “We would expose ourselves to liability” by releasing the information.

Laws, ethics rules and the legal rulings in other cases require both sides in a lawsuit to share information ahead of a trial, in the process called “discovery.”

But, as Beetem reminded the lawyers, that can’t be “a fishing expedition” just to see what the other side has.

Beetem and the lawyers will confer later by telephone to decide what the next steps in the case will be.

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