By KATHERINE E. FINKELSTEIN
Published: August 6, 2000
Seventeen years ago, an angry young doctor who had been fighting with his wife went to consult Michael H. Stone, a psychiatrist known for treating the violent rages and fragile self-esteem of borderline personality disorder.
In the elegant office overlooking Central Park, Dr. Stone said, the young man spoke of homicidal impulses toward his wife and acknowledged past violence. Once, he had tried to drown her cat. Recently, he had choked his wife to unconsciousness, an act that led his parents to arrange the consultation.
The patient’s rage was hardly new to Dr. Stone, who has written extensively about men who control and dominate their partners. Nor was his obligation unfamiliar: a duty to protect the man’s wife from harm by warning her, which he did. He also contacted his patient’s parents, with the patient’s permission.
But little else has been familiar since that consultation in 1983: the wife, Gail Katz-Bierenbaum, vanished in 1985 and has never been found. Last year, her husband, Robert Bierenbaum, the angry young man who had consulted Dr. Stone and became a successful plastic surgeon, was charged with her murder. He will stand trial this fall in Manhattan Criminal Court. He has said he is innocent.
In pretrial hearings last week, prosecutors and defense lawyers deadlocked over a single issue that has yet to be resolved by Judge Leslie Crocker Snyder: whether Dr. Stone should be allowed to testify at the trial, which Dr. Bierenbaum’s lawyers vigorously oppose. They say the psychiatrist-patient relationship is sacrosanct and confidential.
The slim and elegant psychiatrist is more than a potential star witness for the prosecution in a murder trial without a body. He is at the center of a murky and fiercely argued conflict: does the psychiatrist’s duty to warn the potential victim of a violent patient nullify that patient’s right to confidentiality in a court of law?
Dr. Stone, who wants to testify, considered this question recently as he sat before a wall of books and diplomas, wearing an impeccable blue suit and crisp white shirt.
”There is now a murder trial, which is a different circumstance,” he said.
If the door is opened to what happened in Dr. Stone’s office that day and in subsequent meetings, what impact might it have on this closely watched case? Lawyers involved in the case would not comment.
Dr. Stone said he knew from the first consultation and Dr. Bierenbaum’s hauntingadmissions that he was a dangerous man. ”People who kill large mammals —- ” he stopped himself, then continued, ”we know it’s a risk factor.” His concerns were so great, he said, that he gave Dr. Bierenbaum conditions in order to be treated: that each session be taped with two tape recorders; that he give continuing permission for Dr. Stone to contact his parents and his wife, whenever the risk of violence seemed greatest; and that Dr. Bierenbaum’s parents buy a $2 million life insurance policy from Lloyd’s of London to provide for Dr. Stone’s children in the event that his patient harmed him.
This last condition — startling and unorthodox to some experts — was necessary to reduce his own fear and ensure a safe atmosphere for therapy, Dr. Stone said recently, explaining, ”The treatment would be very confrontative, and who knows what feelings would be mobilized.” Dr. Bierenbaum rejected those conditions, Dr. Stone said.
But armed with the duty to warn, and explicit permission from Dr. Bierenbaum to speak with his parents, Dr. Stone said, he did both. In meeting with Ms. Katz-Bierenbaum, he even gave her a letter to sign, which stated that she had been warned by Dr. Stone to separate from her husband or risk death.
”If I do not heed this advice, I must accept the consequences, including the possibility of personal injury, or death, at the hands of my husband,” the letter stated, ”and absolve Dr. Stone of responsibility.” Ms. Katz-Bierenbaum took the letter but never signed it, and two years later she was gone.
The ethics of medicine and the rule of law are worlds apart. The psychiatrist’s obligation, traditionally, has been to safeguard a patient’s disclosures, no matter how dark or alarming. The court’s obligation is to seek truth, even though facts may be deeply hidden.
In 1976, a California court ruled in a landmark decision that a psychiatrist was liable for damages when he failed to warn a patient’s intended victim, Tatiana Tarasoff, of an imminent threat to her life. The privilege between a therapist and patient ends where the ”public peril begins,” the court said.
Psychiatrists protested the Tarasoff decision, as it became known, arguing that it would erode confidentiality and make patients less trusting. But it was adopted as law by many states and became a national standard taught to every psychiatrist in training.
But there has been little precedent in New York, as elsewhere, for the decisions that now face Judge Snyder: whether the warning by Dr. Stone, once given, equals public disclosure and can be shared with a jury, or, as prosecutors also contend, whether the patient’s voluntary waiver of confidentiality to his parents opened the door to allow his doctor to testify about what he said.
At a hearing last Tuesday, Dr. Stone saw his old patient for the first time in years. Dr. Bierenbaum hunched over the defense table in a dull gray suit, expressionless. And the psychiatrist took the stand, glancing only occasionally at the man he briefly assessed.
Earlier, with Dr. Stone out of earshot, an assistant district attorney, Daniel L. Bibb, argued that when Dr. Bierenbaum authorized a full disclosure to his parents, that destroyed the privilege for good, ”not just to the parents but to everybody.” Dr. Bierenbaum’s lawyer, David L. Lewis, argued that the privilege still existed, extended far beyond the course of treatment and that authorizing Dr. Stone to speak with his parents was not a blanket authorization to tell the whole world.
Experts are divided. Some agreed with prosecutors that Dr. Stone’s warning to his patient’s parents and wife effectively let the cat out of the bag; once the patient permits a disclosure, the privilege of confidentiality cannot be recouped.
But others say that a limited release of information does not waive confidentiality. As Dr. Paul S. Appelbaum, professor and chairman of the department of psychiatry at the University of Massachusetts medical school, pointed out, when patients release confidential medical information to an insurance company, confidentiality remains intact.
Dr. Stone remains hopeful that he will be allowed to speak. ”I feel that the information that I hold has great bearing on the case,” he said. ”I have my beliefs; that’s apparent already from the letter I wrote to Gail.”
Missing Gail Katz-Bierenbaum 
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