Aug 12, 2014

Medical Records Confidentiality: Houston Lawyer

Medical records have an unusual legal status in that they are not only a physicians’ primary business records, but also confidential information that is at least partially controlled by the patient. Unlike the traditional lawyer–client privilege, there is no common law physician–patient privilege.
Medical ethics has always demanded that physicians respect their patient’s confidences, and in recent years many states have enacted medical privacy laws. These laws usually limit the dissemination of medical information without the patient’s consent, but provide certain exceptions such as allowing for the discovery of medical information when the patient has made a legal claimed based on that information, or if the patient poses a threat to the public health.

These privacy laws modify the presumption that medical records, as a business record, are subject to discovery in cases against medical care practitioners. In cases where medical records are at issue in litigation against a medical practitioner (other than cases brought by a patient), medical records are protected from discovery unless the plaintiff can show a compelling reason why the records are necessary to prove the case. Even then, the court supervises the discovery and generally requires that all patient- identifying information be removed.
If the case is brought in federal court, such as in an antitrust or false claims case, then the state law protections do not apply. Although federal judges try to protect patients’ confidential information when possible, there are many situations, such as a Medicare fraud prosecution, where the complete records will be discoverable.

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.
The Federal Confidentiality of Substance Abuse Patient Records Statute, section 543 of the Public Health Service Act (42 U.S.C.A. § 290dd-2) establishes confidentiality requirements for patient records maintained in connection with the performance of any federally-assisted alcohol or drug abuse program providing alcohol or drug abuse treatment, diagnosis, or referral for treatment. The term "federally-assisted" is broadly defined to include federally conducted or funded programs, federally licensed or certified programs, and programs that are tax exempt. Certain exceptions apply to information held by the Veterans Administration and the Armed Forces. 

As part of the Conditions of Participation for Medicare/Medicaid and Joint Commission requirements, providers must protect patient confidentiality.

Rule 509 of the Texas Rules of Evidence states that:
 "There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding."

In Texas civil proceedings, confidential communications between a physician and a patient relative to any professional services are considered privileged and may not be disclosed. Any records of the identity, diagnosis, evaluation, or treatment of a patient that are maintained by a physician are also considered confidential.  The provisions rule 509 apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act.
Exceptions may be made in cases when the proceedings are brought by the patient against a physician, such as cases involving malpractice, or in license revocation proceedings when the patient is a complaining witness and disclosure is relevant to the claims (or defense) of the physician. Additionally, exceptions may be made in the following situations:
  • the patient or someone authorized to act on the patient's behalf submits a written consent; 
  • to substantiate claims for medical services rendered, if the records are relevant to an issue of the physical, mental or emotional condition of a patient when that condition is a part of the party's claim or defense, 
  • in disciplinary investigations or proceedings against a physician provided that the identity of the patient is protected,
  • in certain involuntary civil commitment proceedings, proceedings for court-ordered treatment or probable cause hearings,
  • in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution"

 If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. Call (713) 224-3967 for a free consultation or click here for our convenient online submission form.

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