The US Court of Appeals for the Seventh Circuit recently decided thease of Giffin v. Summerlin, in which a patient sued his Indiana doctor for the testimony he gave in his patient’s malpractice suit against a prior treating physician.  In 1981, William Giffin had facial surgery which left part of his face paralyzed. Giffin Was subsequently treated by Dr. Summerlin, a reconstructive surgeon, who significantly improved Giffin’s condition.  In 1983, Giffin considered suing the first surgeon. The patient’s attorney sent a letter to Dr. Summerlin asking his opinion about the merits of this malpractice suit. Without consulting an attorney, Dr. Summerlin responded to the questions in Writing, saying he believed the initial surgeon complied with the standard of care.


    Giffin sued the first surgeon anyway, even though Dr. Summerlin’s views did not support his claim. As the malpractice suit went forward, the defendant surgeon requested Dr. Summerlin’s records and documents relating to Giffin. He provided authorization, signed by the patient, for release of all records, documents, and correspondence. Dr. Summerlin sent along the records, including a copy of the letter stating his opinion about the merits of the suit. 


    Dr. Summerlin was deposed by the original surgeon, meaning he gave testimony under oath. Again, he did not consult an attorney. During deposition, Dr. Summerlin was asked for his opinion of the patient’s prior treatment and he again said he felt the initial surgical procedure was an accepted one, performed within the standard of care.  The patient eventually settled his suit against the first surgeon for $21,000. But, he was angry with Dr. Summerlin about his testimony and felt that the subsequent treating surgeon had rendered the malpractice suit “winless.”


    He sued Dr. Summerlin for breach of the physician patient privilege, breach of the confidential relationship, and breach of his fiduciary duty to Giffin. The District Court dismissed the second suit, finding that Giffin had waived the physician patient privilege when he filed his malpractice claim. However, Giffin appealed and Dr. Summerlin’s case was heard by the Seventh Circuit Court of Appeals. The Circuit Court also dismissed the action against Dr. Summerlin, although for a different reason. It found that, under Indiana law, a witness giving testimony at judicial proceedings is immune from civil liability arising from that testimony. This, in fact, is true in most jurisdictions, including Massachusetts. 


    A physician should be aware of the potential consequences when asked by a patient or attorney for medical records, even if the request is in the form of a subpoena. For example, if a physician provides a patient with a medical record that includes peer review material, then normally privileged information becomes part of the lawsuit. Or if a physician does not have specific authorization to disclose psychiatric information, he may find himself sued under statutes protecting patients’ confidentiality. If there are questions about the scope of material requested, a physician should ask a risk manager, insurer or attorney for advice. The same holds true for subsequent treating physicians who are asked to give opinions about prior care.  In the case of Giffin v. Summerlin, Dr Summerlin inadvertently assumed the role of an expert witness when he corresponded with the patient about the first surgeon’s care. At his deposition, he again assumed the role of an expert by giving a similar opinion. He could have, if he had wished, limited his opinions to his own area of expertise -- his care and treatment of the patient. 


    Finally, physicians who are asked for information by someone other than the patient or the patient’s attorney should seek advice about the appropriateness of responding. States vary as to whether the physician can respond to such inquiries without first informing and gaining permission from the patient. For example, in Massachusetts, responding without patient authorization is generally not permitted. However, in neighboring states, Courts have held that once litigation starts, the physician-patient privilege is waived and such conversations are permissible. How the physician-patient privilege applies to requests for confidential information raises complex legal issues. In each state, there are very specific laws governing these issues. Your attorney or hospital risk manager will be familiar with these, and can offer guidance about how to appropriately respond.


    Deposition Pitfalls Providing Medical Records in a Suit Against Subsequent Treating Physicians

    by Attorney Frank E. Reardon    June 1996

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

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