Medical Records
| Author | Jeffrey Wilson |
| Pages | 899-904 |
Page 899
Medical records are the property of those who prepare them (medical professionals) and not the property of those about whom they are concerned (patients). However, patients have a privacy right in the information contained in the records. These two interests may or may not conflict when it comes to releasing medical records to outside or third parties, who may also have another interest at stake. Once these basic and often competing interests are separated and assessed, it becomes easier to understand the issues that may surround the right to request, view, copy, or protect medical records and medical information.
Although medical records belong to the medical professionals/entities who create or prepare them, patients generally have a right to review them, demand copies of them, and to demand their confidentiality, i.e., prohibit release of information contained in them (with limited and specific exceptions). Where does a patient get the authority to control the release of documents that belong to others? The patient's rights are dependent upon who created the documents, who wants to view them, and why their release is warranted.
First and foremost, there is the common law concept of "doctor-patient confidentiality" that binds a medical professional from revealing or disclosing what he or she may know about a person's medical condition. The professional duty of confidentiality covers not only what a patient may reveal to the doctor, but also what a doctor may independently conclude or form an opinion about, based on his or her examination or assessment of the patient. Confidentiality covers all medical records (including x-rays, lab-reports, etc.), as well as communications between patient and doctor, and generally includes communications between the patient and other professional staff working with the doctor.
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Once a doctor is under a duty of confidentiality, he or she cannot divulge any medical information to third persons without the patient's consent. There are noteworthy exceptions to this, discussed below.
At one time (fairly common through the 1970s), a doctor was considered a mere "custodian" of medical records, which were considered the property of the patient (because the personal information contained in them related only to the patient). It was common practice to release to a patient, upon demand, all original records concerning the patient. However, that practice led to some patients destroying their medical records, denying that they had received certain treatments, misrepresenting their conditions for the purpose of obtaining life or health insurance policies, and (in the case of psychiatric patients) sometimes becoming a threat to the community at large after learning what was contained in their records. Medical malpractice suits and liability for harm caused to third persons became a paramount issue that drove the impetus for establishing a refinement of the law (mostly through case law).
This change has resulted in a clarification that the actual original medical records belong to those who create or originate them. However, the release to a patient or to third parties of information contained in the medical records (about a particular patient) is generally controlled by the patient (with specific exceptions).
Medical professionals may be required by the request of a patient (or court order, subpoena, etc.), to produce original documents and records for inspection, copying, or review. Usually, this is done in a supervised fashion within the offices or facilities of the creator/originator of the records (the doctor or medical facility). For all intents and purposes, it is more common for the original documents to be simply photocopied and forwarded to the patient or to the party whom the patient designates. It is general practice to not charge for copying or reproducing if the records are not extensive and are being requested by the patient, for the patient's own use.
The fundamental right to privacy, guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, protects against unwarranted invasions of privacy by federal or state entities, or arms thereof. As early as Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court acknowledged that the doctor-patient relationship is one which evokes constitutional rights of privacy. Because the Supreme Court has found that a fundamental right of privacy exists as to medical information about a person, private causes of action (against defendants other than federal or state entities) also exist for alleged violations of privacy rights (e.g., "invasion of privacy"). This right would extend to the privacy of any medical information contained in medical records.
But even that right is not absolute, and must be weighed against the state or federal, or outside interest at stake. For example, in Whalen v. Roe, 429 U.S. 589 (1977), a group of physicians joined patients in a lawsuit challenging the constitutionality of a New York statute that required physicians to report to state authorities the identities of patients receiving Schedule II drugs (controlled substances). The physicians alleged that such information was protected by doctor-patient confidentiality, and their patients alleged that such disclosure was an invasion of their constitutional right to privacy. The Supreme Court did not disagree with the lower court's finding that "the intimate nature of a patient's concern about his bodily ills and the medication he...
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