Medical privacy: the South Dakota Supreme Court adopts SDCL 19-2-13.

• Author: Leach, James D.

"The information that may be recorded in a doctor's files is broadranging. The chronology of ailments and treatment is potentially sensitive. Patients may disclose highly personal details of lifestyle and information concerning sources of stress and anxiety. These are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual." (1)

"Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment." (2)

1. INTRODUCTION

   Every day, in every state in this country, lawyers for injured people send their clients' medical records to attorneys for defendants. They do so because their clients, by having sought compensation for their injuries, have put their physical or mental condition in issue. By doing so, their clients have waived the privilege not to disclose confidential medical information. (3) It is implicit in this production that the records will only be used for the purpose for which they are disclosed, which is to help determine liability or damages in the case in which the records are produced. (4) But experience has shown that not all defendants and insurers agree. (5)

   In 2010, the South Dakota Supreme Court became the first court in the country to adopt a rule restricting the reproduction, distribution, or use of a medical record for any purpose other than the purpose for which it was produced. As modified by the court on March 2, 2011, SDCL section 19-2-13 states:

   The production of a record of a health care provider, whether in litigation or in contemplation of litigation, does not waive any privilege which exists with respect to the record, other than for the use in which it is produced. Any person or entity receiving such a record may not reproduce, distribute, or use it for any purpose other than for which it is produced. This rule does not bar any person or entity from complying with any court order, or state or federal law or regulation authorizing disclosure of information that otherwise would be protected by this rule. (6) Why was this rule needed? Why are other protections, including tort remedies and the Health Insurance Portability and Accountability Act (HIPAA), insufficient? How did the South Dakota Supreme Court, which is not considered activist, come to adopt it?

2. NEED FOR THE RULE

   A Colorado chiropractor was injured in a motor vehicle accident and sought uninsured motorist and personal injury protection benefits from her insurer, State Farm. As part of the claim process, she provided State Farm with her medical records, which showed that she had been diagnosed with a psychological disorder. Her uninsured motorist benefit claim was arbitrated and she received an award. Her personal injury protection claims were dismissed. (7)

   The chiropractor later appeared as an expert medical witness for one of her patients in unrelated litigation between the patient and State Farm. During the chiropractor's voir dire examination, State Farm's attorney asked about her psychological history, treatment, and diagnosis. (8) She sued State Farm for damages, alleging several causes of action, all based on State Farm's allegedly improper use of the medical records that she disclosed in arbitration. (9) The trial court dismissed her claims. The Colorado Court of Appeal affirmed. (10) The Colorado Supreme Court denied review. (11)

   In Hawaii and West Virginia, lawyers sought case-by-case protective orders to limit the defense from using their clients' medical records for purposes other than the case in which they were disclosed. Insurance companies fought such efforts with a vengeance.

   In Hawaii, after a trial court refused to enter such an order, plaintiffs' attorneys sought a writ of mandamus from the Hawaii Supreme Court. The court entered the writ. The court found "no present legitimate need for disclosure of petitioners' health information unrelated to the underlying litigation," and ruled that "disclosure outside the litigation of petitioners' health information produced in discovery will violate petitioners' information privacy right under article I, section 6" of the Hawaii Constitution. (12)

   In West Virginia, the trial court entered an order restricting an insurer's use of plaintiffs medical records. The order barred defendant and insurer from disseminating the medical records to any third party without plaintiffs consent, and required the insurer to...