Disclosing Medical Records

Kenneth I. Kolpan, JD (Editor)

ALTHOUGH MOST practitioners appreciate the sanctity of medical records, few understand either the implications of wrongfully disclosing records to another person or how to avoid liability for doing so. The case study below illustrates the serious consequences of releasing records without proper authorization.

Nothing is more intimidating than being greeted with a subpoena to appear at a deposition or turn over patient records. The subpoena compels you in no uncertain terms to deliver your patient's records to a lawyer's office by a stated time and date. The subpoena goes on to say that you may surrender the records in lieu of appearing and giving testimony at the deposition.

CASE STUDY: A 32-year-old, head-injured man tells his psychiatrist that he wants a copy of his records to give to his attorney. The same afternoon a constable serves a subpoena demanding that the same patient's records be turned over to Attorney Smith's office in ten days at a deposition. The subpoena includes a telephone number that can be used if there are any questions. When he calls the office, the psychiatrist is told that he can comply with the subpoena by turning over the records, thereby avoiding the necessity of attending the deposition. The psychiatrist sends a copy of the records to Attorney Smith. The psychiatrist complies with the subpoena, which was sent according to the applicable Rules of Civil Procedure, but which was issued not by the patient's attorney but by the opposing counsel.

The defense lawyer did nothing unscrupulous or illegal: He followed the laws of his state in attempting to obtain copies of pertinent records for litigation. The subpoena was signed, dated, notarized, and served properly. What the psychiatrist failed to recognize was that the subpoena did not authorize him to release the records absent his patient's specific authorization or a court order validating the subpoena. The psychiatrist had neither.

The psychiatrist's mistake was understandable, but costly. The subpoena clearly demanded all records without fail; though the subpoena gave the name and address of the attorney who was to receive the records, it did not state that the attorney represented the patient (though that is irrelevant to the legal issue here); and the subpoena stated that submission of the records meant compliance with the subpoena.

The psychiatrist's mistake could have been devastating. Unauthorized disclosure of psychiatric records is a violation of the patient's right to privacy for which the psychiatrist could be held liable. If the records had contained untruths about the patient, the psychiatrist could have been sued for defamation of character, and could have been facing a serious medical malpractice claim.

Immediately after receiving the subpoena, the psychiatrist could have contacted his patient to obtain written permission to release the records. This would have provided immunity for the psychiatrist on the right to privacy claim, though it would not necessarily have eliminated the defamation allegation. If the patient will not give permission, the psychiatrist should not ignore the subpoena; failure to respond to the subpoena would result in a court order compelling the psychiatrist to appear at a hearing. The better course to take would be to contact legal counsel before the subpoena deadline, and then the attorney could file a motion in court to void (quash) the subpoena. After a hearing, the court would either do away with the subpoena or order that the records be turned over. The psychiatrist could then follow the court's order without impunity.

This case study reminds health care practitioners that treatment records belong to the patient, though the health care practitioner maintains custody. It is the patient who, along with the court, authorizes release. A health care practitioner who discloses under any other circumstances does so at his or her peril.