Wednesday, July 9, 2008

Disclosure Of Medical Records May Result In Civil Liability

The Ohio Supreme Court held today that an attorney may be liable for unauthorized disclosure of medical records obtained in discovery. The records were provided in divorce litigation and revealed that the husband had "homicidal thoughts" about his wife. The attorney had provided the records to a prosecutor in connection with a criminal matter against the husband. The records were never admitted in either the civil or criminal matters. The husband was acquitted in the criminal case. He then sued the lawyer, his ex-wife, the doctor, his employer and the hospital that housed the doctor's employer for improper disclosure of the records.

The summary of the court's holding on its web page highlights the following language:

In today’s majority opinion affirming the 8th District, Chief Justice Moyer noted that: “In general, a person’s medical records are confidential.  Numerous state and federal laws recognize and protect an individual’s interest in ensuring that his or her medical information remains so.... Physician-patient and psychologist-patient privileges have been codified in Ohio to deny the use of such information in litigation except in certain limited circumstances.... We explicitly recognized and applied this basic policy of confidentiality in Biddle v. Warren Gen. Hosp. (1999). In that case, we confronted issues arising from the disclosure of health-care information obtained through a physician-patient relationship. After surveying cases in Ohio and beyond, we recognized that the breach of patient confidentiality is a palpable wrong. ... We defined the boundaries of this tort by recognizing two related causes of action: one against physicians and hospitals that disclose confidential medical information to a third party without authorization or privilege to do so, and one against third parties who induce physicians or hospitals to disclose such information.”

While acknowledging that the specific causes of action recognized in Biddle “apply imperfectly” to the facts in this case, the Chief Justice wrote: “(W)e conclude that the rationale for our decision there applies here. Biddle stressed the importance of upholding an individual’s right to medical confidentiality beyond just the facts of that case.”

The Chief Justice rejected Belovich’s argument that she should be held exempt from liability for providing Hageman’s medical records to the prosecutor because Hageman had waived the confidentiality of those records when he filed a counterclaim in the divorce action seeking custody of his daughter.  “Hageman admits that he made his health an issue in the divorce action by seeking custody of his and his ex-wife’s minor child,” wrote Chief Justice Moyer.  “Pursuant to the law of the Eighth Appellate District, Hageman was required to demonstrate that he was capable of caring for his child in order to be granted custody. For that reason, he waived his medical privilege for the purposes of that case. Whatever discomfort arose from this disclosure of private and confidential information was tempered by the possibility of success on his custody claim. However, there is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific, limited purpose is a waiver for another purpose.”

  “Creating an expansive waiver would be inconsistent with the generally recognized confidentiality provisions in Ohio and federal law. Moreover, the expansive waiver urged by Belovich would not be desirable public policy for a number of reasons. First, individuals should be encouraged to seek treatment for medical or psychological conditions, and privacy is often essential to effective treatment.... Likewise, if an expansive waiver existed for medical records obtained through litigation, the potential for abuse of this waiver would be high. The party receiving the records will generally be the only person with anything to gain from the disclosure of the information beyond the underlying litigation. The facts in this case convince us that an attorney with medical records of a party in one case could use those records for purposes not intended by the party granting the waiver.”

A dissent would find a waiver of any privilege:

The very purpose of permitting its discovery is to allow its examination and use by opposing counsel in furtherance of the cause of the client.

The court's opinion is linked here. (Mike Frisch)

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