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By Jan J. Gorrie, Esq., and Seema Patel Buchanan, Ingersoll Professional Corp. Tampa, FL
News: A female hospital patient accused a male patient of sexually assaulting her. She brought a civil action against the health care providers and criminal suit against the other patient. During court proceedings, the woman requested the male patient’s medical records. Though he refused, she took the issue to court and won. The court ruled that the doctor-patient privilege had been waived by the accused and ordered the hospital to release his medical records.
Background: Following surgery, a bedridden female patient was recuperating in her hospital room. She claimed that a male patient entered her room and sexually assaulted her. She brought suit against the hospital and physicians, saying the man was under psychiatric observation during his stay and would not have been able to commit the assault but for their negligence. She also claimed the hospital negligently failed to repair a defective emergency call button that she tried to use to summon help.
She also brought a criminal suit against the man for sexual assault. In his counterclaim, he said that if he was found to be liable, the hospital should be liable in the same respect and to the same extent as he was by virtue of their negligent care and treatment of him.
Prior to either matter coming to fruition, she died as a consequence of medical problems unrelated to the assault. Her father continued the actions against the health providers and male patient.
The male patient ultimately was convicted of sexual assault and appealed. However, the appeal was unperfected; moreover, there was no factual support for his contention that his conviction was unwarranted and should be reversed.
During appeal, the plaintiff’s attorney sought the male patient’s consent for the release of his medical records. He refused. Having failed to obtain the records voluntarily, the plaintiff brought a motion to compel the hospital to release the records without the consent of the patient. In the jurisdiction, there are three key statutory elements necessary to establish the existence of a doctor-patient relationship: 1) there must have been a doctor-patient relationship; 2) the information must have been obtained during the course of treatment; and 3) the information must have been necessary for treatment. In addition, for the privilege to be honored, it must not have been waived.
The court conceded that the first three required elements had been satisfied but found that statutory privilege had been waived. By advancing his cross-claim, the male patient had unquestionably put into issue the psychiatric care and treatment that he received from the hospital and his physicians, and therefore, his mental condition. The court ordered the hospital and physicians to release his medical records, finding that even if acquitted of the crime, the medical records were important to the discovery process in the civil suit against the health providers.
What this means to you: Risk managers often are confronted with discovery issues and this case posed an interesting fact pattern. The hospital held on to the records until told by the court to do otherwise, "and rightfully so. Medical records are considered confidential and in most jurisdictions psychiatric records are deemed superconfidential. Therefore regardless of the circumstances, any time a third party requests such records, the request should be reviewed in light of the prevailing law and jurisdictional interpretation," notes Jane M. Koubek, RHIA, manager of clinical documentation at St. Joseph’s Hospital in Tampa, FL.
To release medical records to someone other than the patient poses potential risk to the facility. If confidential records, much less superconfidential records, are released without proper waiver or consent, the facility may be held liable and that liability may be compounded by any finding of medical negligence within those records.
"Accordingly, coordination between the medical records department and risk management is critical. As seen with this case, both areas needed to be engaged in the situation both as to the request for the records and potential suit against hospital that the records might have presented. Although, the court in this case said to release the files, if faced with a similar fact pattern, it would probably be advisable to hold the records until ordered by a court to relinquish them," concludes Koubek.