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Balancing Patient Privacy and Public Health Risks to Others - Baptist Memorial Hosp.- Union County v. Johnson, 754 So.2d 1165 (Miss 2000)

This is an important case with a useful discussion of the difficult balance the court must achieve between a patient's expectation of privacy and the prevention of harm to others. Defendant hospital mixed up plaintiff's new born baby, which resulted in the baby being breast fed by someone other than the baby's mother. The defendant discovered this within a few hours and informed plaintiff of the problem. Plaintiff demanded to know who the baby was given to and to have access to the patient's medical records to detect any potential heath threats to the baby, since breast feeding can transmit communicable diseases such as HIV. The hospital asked the patient what she wanted to do. She was willing to give the plaintiff access to certain medical information, including her HIV test, but was unwilling to be identified or give plaintiff full access to her medical records. Since plaintiff has not filed any action against her as a Jane Doe, she is a third party to this litigation. Plaintiff requested the patient's identify and medical records from the hospital, which refused. The trial court entered a discovery order for the information, then stayed it so the state appeals and Supreme Court could review this case of first impression in Mississippi.

After a detailed review of the law in several states, the court determined that Mississippi did allow the balancing of the patient's rights against those of the third party seeking the records. In this case, the court considered two factors. First, the potential harm to infant, who was in poor health. The court recognized that hospital would not have all the patient's medical information and that plaintiff could only explore the full extent of the patient's medical history by dealing with her directly. Second, the court recognized that the patient was a material witness to the defendant's negligence and that defendant should not be allowed to use medical information privilege to hide witnesses. (While not specifically discussed by the court, it is not clear that there is any privilege in the mere fact of admission to a general hospital for a non-stigmatizing condition such as pregnancy.) The Supreme Court did modify the trial court's order by requiring that the judge examine the medical records in camera to determine if any protective orders needed to be entered, but upheld giving the patient's identity to the plaintiff. In a concurrence, four judges stressed that in their view the risk to the infant alone outweighed the patient's right to privacy. Interestingly, the opinion never dealt with alternative ways of handing the disclosure issue, such as having the local health department investigate this as a disease control case, using their police power access to the records.

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