Medical records have an unusual legal status. They are medical care
practitioners’ primary business records, but they are also confidential records of
information whose dissemination is at least partially controlled by the patient.
This is further complicated by the ambiguous nature of rules governing
physician–patient communications. Unlike the lawyer–client privilege, which is
a traditional common law privilege, there is no common law physician–patient
privilege. Although medical ethics has always demanded that the physician
respect the patient’s confidences, violations were punished, if at all, as general
invasion of privacy cases. In the last 30 years, most state legislatures have
enacted medical privacy laws. These laws are similar in that they limit the
dissemination of medical information without the patient’s consent, and they
provide certain exceptions for this protection, such as allowing the discovery of
medical information when the patient has made a legal claimed based on that
information or when the patient poses a threat to the public health. The
federal government does not provide a general protection for medical privacy
outside of federal institutions, but there is a federal law that protects records
dealing with treatment for alcoholism and substance abuse. [42 U.S.C.A. §
290dd-2.] As part of the Conditions of Participation for Medicare/Medicaid and
Joint Commission requirements, providers must protect patient confidentiality.
These state and federal privacy laws modify the usual presumption that
medical records, as a business record, are subject to discovery in civil and
criminal matters against the medical care practitioner. When a medical record
is at issue in state litigation against a medical care practitioner, other than
cases brought by the patient, medical records will be protected from discovery
unless the plaintiff can show a compelling reason why the records are
necessary to prove its case. Even then, the court will supervise the discovery
and generally require that all patient- identifying information be removed. If the
case is brought in federal court, under federal law, such as an antitrust or false
claims case, then the state law protections do not apply. Although federal
judges do try to protect patients’ confidential information when possible, there
are many situations, such as a Medicare fraud prosecution, where the records,
patient identifiers and all, will be discoverable.