Nearly all health care professionals find themselves in the precarious situation of being hounded by their patients' legal adversaries to release medical records, while worrying about violating physician patient confidentiality. What is one to do in this situation? Several Missouri cases offer guidance. The advice these cases offer have one universal refrain: Obtain a full, signed and specific authorization from your patient which indicates the party to whom you may release records, before taking any further action.
In Fierstein v. DePaul Health Center (1997) the attorney for a father in a child custody action subpoenaed the medical records of his client's ex-wife. While the subpoena stated the custodian of records was to appear with the records at a deposition, the requesting attorney also included a letter advising the hospital that it could forward the documents to her and avoid appearance at the deposition. The hospital did so immediately, thereby giving the father's attorney a preview of the records prior to deposition. However, the deposition was the ex-wife's first opportunity to try to void the subpoena as beyond the scope of permitted discovery. The hospital found itself sued by the ex-wife for violating a confidentiality statute and breaching its fiduciary duty of confidentiality. The patient was successful on her claim for breach of fiduciary duty. Had the hospital obtained a comprehensive written authorization from its patient to release the records or simply waited and brought the records to the deposition the hospital would have complied with the law and you would not be reading about the hospital's liability now.
In Fierstein the original dispute was domestic in nature, and the other party raised the issues of the patient's health. The law views differently suits in which the plaintiff puts his or her health in issue. This happens commonly in personal injury and medical malpractice cases. In cases such as these the patient makes public his or her injuries in the hope of financial recovery. As such the plaintiff cannot then hold a physician liable for releasing records pertaining to the very conditions the plaintiff made public. However, where is the line drawn as to what has already been made public by the plaintiff? The physician's records may include information the plaintiff will never make public, as it does not relate to the injury for which he or she sues. The safest route for the health care professional is still to require a specific signed authorization from the patient prior to any release.
This rule also holds true for a provider's communications with the personal injury patient's adversaries. Physicians are allowed to have communications with the adversary's attorney, in lieu of a deposition. Brandt v. Medical Defense Associates. The parties may discuss only medical records related to the injuries in issue. However, the Missouri Supreme Court warns against such a practice:
"When a doctor engages in ex parte communications with a patient's adversaries, there is a risk that the disclosure will exceed the bounds of the waiver of the privilege. If this should occur, the physician risks being liable for the independent tort of breach of fiduciary duty. For this reason, physicians may be well advised to avoid ex parte discussions with a patient's adversaries absent a clear understanding as to what medical information is relevant to the patient's injuries then at issue. Once the physician's deposition has been taken, this may clarify what medical information is discoverable and therefore proper for informal discussion." Brandt v. Medical Defense Associates, 856 S.W.2d 667, 670 (Mo. 1993)
Laws Specifically Allowing or Forbidding Release
Release Allowed
In spite of these admonitions against releasing records, a select group of laws allow the health care professional to release information without fear of liability:
- Report that a patient was treated for gunshot wound to a local law enforcement official. (Mo. Rev. Stat. Sec. 578.353). The knowing failure of licensed physicians or nurses to do so results in the offense of medical deception. (Mo. Rev. Stat. 578.350).
- Report treatment of an intoxicated motorist to highway patrol. (Mo. Rev. Stat. Sec. 334.265).
- Report health information concerning patient to Department of Health for statistics. (Mo. Rev. Stat. Sec. 192.067).
- Report to Department of Health when child patients have been exposed to a controlled substance. (Mo. Rev. Stat. Sec. 191.737).
- If high-risk pregnant woman consents to release of anonymous details of her condition to Department of Health no civil liability for physician for disclosing. (Mo. Rev. Stat. Sec. 191.743).
Release Forbidden
Likewise, the general assembly has made clear two situations where disclosure is forbidden without the patient's specific consent:
- Physician must NOT release abortion records. Unauthorized release is punishable by law. (Mo. Rev. Stat. 188.070).
- Physician must NOT release HIV status, unless the release falls within a relatively small list of exceptions among which are release to the State, a parent of an unemancipated minor, or a sexual offense victim. (Mo. Rev. Stat. 191.656).