Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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  • Taking Chances2:24

          The issue of confidentiality comes up quite often in the medical profession.  Both patients and physicians have expectations of privacy when it comes to medical care.  While a patient has an expectation that their physician will not disclose their medical information to outside third parties, physicians whose treatment decisions are being criticized expect that their investigation in defense of these criticisms will remain private.

            These privacy rights are not always black and white. 

            In general, health care providers must take certain steps to respect their patient’s right to privacy when retaining treatment records.  Hospitals and physician groups have certain policies in place regarding how to respond to request for medical records by outside third parties.  These policies are undoubtedly developed to comply with right to privacy legal  requirements.  When patients are involved in litigation, their right to privacy can be limited.  These limitations, however, are not always a complete waiver to a patient’s right to privacy and should not be treated as such. 

            Physicians themselves also have privacy interests.  When physicians are involved in a medical malpractice claim, they have the right to work with their attorney to develop a defense.  They have an expectation that their communications with counsel are privileged.   When physicians communicate with outside third parties about the medical issues involved in a case, these communications may be discoverable by opposing counsel.  As a result, physicians become reluctant to even think about a lawsuit outside of their attorney’s presence.  Sometimes a medical malpractice case can be overwhelming to a physician and the concern of keeping the matter confidential can prevent them from confronting and working through the stress.  Physicians need to know that there are resources for them to deal with the stress of litigation without jeopardizing the confidentiality of their defense.  Attorney-client communications are not the only privileged communications.  For example, physicians can communicate about a case with their husband or wife, and any such communications are subject to the marital communications privilege.  Physicians can also communicate with a counselor, social worker or psychologist, and those communications would likewise be privileged.  More importantly, physicians can communicate with friends and colleagues about the stress of litigation without getting into the privileged details about the pending lawsuit.  Since medical malpractice cases usually span the course of several years, it is important for physicians to feel comfortable with communicating and dealing with the stress of the litigation. 

            Physicians have to be mindful that when they do communicate with third parties about a pending legal matter, they cannot do so in a manner that will interfere with a patient’s right to privacy.  Physicians should not conduct an independent medical investigation regarding their patient without considering whether their planned communications may invade their patient’s right to privacy.  For Example, in Rhode Island, the Supreme Court recently upheld a statute which limits the extent to which a patient waives their right to privacy by filing a medical malpractice lawsuit.  The statute at issue expressly prohibits a physician from directly contacting one of the patient’s treating physicians without the patient’s prior consent.  Pursuant to the statute, a physician must obtain a written release from the patient to discuss the patient’s case with other providers.  The statues does, however, authorize the physician’s attorneys to conduct discovery from treating physicians.  This can be done by issuing subpoenas for medical records and deposition testimony. What the statute forbids is informal conversations between a defendant physician and one of the patient’s other health care providers about the patient’s private medical information.  Physicians in Rhode Island who are contacted by a colleague who is being sued for malpractice by one of their patients must be cautious not to discuss what they know about that patient’s medical condition, even if they think the information they have will help their colleague.  Therefore, physicians should not take it upon themselves to conduct independent medical investigations about substantive issues in the case without discussing the issue with their attorneys. 


by Attorney Frank E. Reardon

September 2001