concurring.
I agree with my colleagues and the district court that the grand jury is engaged in a matter of such importance that it should receive the information that it reasonably needs pertaining to the patients of Dr. Antia. I also join with Judge Wood in his expression of confidence that “.. . the grand jury, related investigative bodies, and, if an indictment is returned, the trial court, will take scrupulous measures to ensure that there occurs no unnecessary disclosure of patients’ names or diagnoses.” Accordingly, I join in the affirmance of the order requiring adherence to the subpoena.
However, I do not share Judge Wood’s view that “... the patients’ explicit authorization of disclosure of the requested records to third parties, the medical insurers, waived any privilege that might arguably have existed.” It seems to me that the traditional waiver doctrines are inappropriate in the context of present-day medical insurance. Such insurance plans have gained national prevalence and exist to encourage the creation of doctor-patient relationships where necessary to protect a person’s physical and mental well-being. Moreover, they are designed to lessen the considerable financial burdens that, in the absence of insurance, would force many people to gamble with their health. Since the doctor-patient privilege exists to encourage such relationships and protect them when they are made, policies behind health insurance and the privilege go hand in hand.
Thorough reliance upon the confidential relationship with the doctor is particularly important to a psychiatric patient, because of the very nature of the problem that brings the two together. Such a patient may, with reluctance, recognize the practical necessity for disclosure of his identity and perhaps other information to the insurance carrier. But it by no means follows that because of this he may be deemed to have consented to become involved in a criminal investigation. It is well established that a patient or a client may consent, tacitly or otherwise, that a secretary or a nurse or a paralegal may be exposed to his disclosures, without destruction of the relevant privilege of confidentiality. This also stems from practical necessity. I think the same should be true with respect to medical insurance personnel.
In Ryan v. C.I.R., 568 F.2d 531, 543 (7th Cir.1977), this court said: “The intention of Congress in enacting Rule 501 [of the Evidence Code] was that ‘recognition of a privilege based on a confidential relationship *265and other privileges should be determined on a case-by-case basis.’ 1974 U.S.Code Cong. & Admin.News, p. 7059. See United States v. Allery, 526 F.2d 1362, 1366 (8th Cir.1975). In making the case-by-case determination, it is helpful to weigh the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case.” I believe that, under the circumstances of this case, a weighing of the factors requires that the valid privilege here concerned give way to the need for most, perhaps all, of the information sought. But I would commend to the trial judge that the “... scrupulous measures to ensure that there occurs no unnecessary disclosure of patients’ names or diagnoses ...” be considered with respect to the subpoenaed material, as well as after any resulting indictment.