Healthcare providers who handle medical records must fully understand the related issues of ownership and privacy. Medical records are the property of the provider of care and are maintained for the benefit of the patient. Ownership resides with the organization or professional rendering treatment. Although medical records typically have been protected from public scrutiny by a general practice of nondisclosure, this practice has been waived under a limited number of specifically controlled situations. Both applicable law and the courts recognize that individuals have a right to privacy and to be protected from the mass dissemination of information pertaining to their personal or private affairs. The right of privacy generally includes the right to be kept out of the public spotlight. The Privacy Act of 1974 was enacted to safeguard individual privacy from the misuse of federal records and to give individuals access to records concerning themselves that are maintained by federal agencies.
Requests by Patients
Patients have a legally enforceable interest in the information contained in their medical records and, therefore, have a right to access their records. Patients may have access to review and obtain copies of their records, X-rays, and laboratory and diagnostic tests. Access to information includes that maintained or possessed by a healthcare organization or a healthcare practitioner who has treated or is treating a patient. Organizations and physicians can withhold records if the information could reasonably be expected to cause substantial and identifiable harm to the patient (e.g., patients in psychiatric hospitals, institutions for the mentally disabled, or alcohol and drug treatment programs).
Changes to HIPAA released by the U.S. Department of Health & Human Services (HHS) 45 CFR Parts 160 and 164 adopt rules on individuals’ right of access to protected health information that include, in part, the following:
• Expand individuals’ rights to receive electronic copies of their health information and to restrict disclosures to a health plan concerning treatment for which the individual has paid out of pocket in full.
• Require modifications to, and redistribution of, a covered entity’s notice of privacy practices.5
Failure to Release Patient Records
Failure to release a patient’s record can lead to legal action. The patient, for example, in Pierce v. Penman 6 brought a lawsuit seeking damages for severe emotional distress when physicians repeatedly refused to turn over her medical records. The defendants had rendered different professional services to the plaintiff for approximately 11 years. The patient moved and found a new physician, Dr. Hochman. She signed a release authorizing Hochman to obtain her records from the defendant physicians. Hochman wrote a letter for her records but never received a response. The defendants claimed that they never received the request. The patient changed physicians again and continued in her efforts to obtain a copy of the records. Eventually, the defendants’ offices were burglarized, and the plaintiff’s records were allegedly taken. The detective in charge of investigating the burglary stated that he was never notified that any records were taken. The court of common pleas awarded the patient $2,500 in compensatory damages and $10,000 in punitive damages. On appeal, the superior court upheld the award.
Requests by Third Parties
The medical record is a peculiar type of property because of the wide variety of third-party interests in the information contained in medical records. Healthcare organizations may not generally disclose information without patient consent. Policies regarding the release of information should be formulated to address the rights of third parties, such as insurance carriers processing claims, physicians, medical researchers, educators, and governmental agencies. Several cases are listed here where the right to privacy is nullified due to, for example, criminal investigations, Medicaid fraud, and substance abuse.
Criminal Investigation
The psychotherapist–patient privilege that exists under the federal rules of evidence can be overcome if the need for a psychiatric history outweighs a privacy interest. In In re Brink,7 the hospital sought to quash a grand jury request for the medical records pertaining to blood tests administered to a person under investigation. The court of common pleas held that physician–patient privilege did not extend to medical records subpoenaed pursuant to a grand jury investigation. A proceeding before a grand jury is considered secret in nature, inherently preserving the confidentiality of patient records.
Medicaid Fraud
Patient records may be obtained during investigations into such alleged criminal actions as Medicaid fraud. The defendant physician, Dr. Edwin Ekong, in the People v. Ekong,8 was held in contempt of court for failing to comply with a subpoena duces tecum that was issued by a grand jury for Medicaid patient records in his possession. The physician contended that he could not release the files because of physician–patient privilege. The Appellate Court of Illinois, Third District disagreed, holding that the grand jury was permitted to obtain the patient files and records that were in his possession because he was under investigation for Medicaid fraud.
Substance Abuse Records
The federal Drug Abuse and Treatment Act of 19729 and federal regulations provide that patient records relating to drug and alcohol abuse treatment must be held confidential and not disclosed except in specific circumstances. Unlike other medical records, drug and alcohol abuse records cannot be released until the court has determined whether a claimed need for the records outweighs the potential injury to the patient, patient–physician relationship, and treatment services being rendered. Because of these strict requirements, the courts have been reluctant to order the release of such records unless absolutely necessary.