Vol. 11, No. 4, Pg. 26. Heath Information Confidentiality.

• Author: By Lawrence A. Laddaga and Annette Roney Drachman

South Carolina Lawyer

2000.

Vol. 11, No. 4, Pg. 26.

Heath Information Confidentiality

26HEALTH INFORMATION CONFIDENTIALITYBy Lawrence A. Laddaga and Annette Roney DrachmanWhatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets.

--Oath of Hippocrates 4th Century, B.C.E.

In today's electronic world, medical information has taken on a new role. The information collected regarding an individual's health status has become more sophisticated as has the method of collection.

This information has become more valuable for commercial activities, as well as research and forecasting, and is often communicated to health insurance companies, claims processors, employers and other entities. This information is transferred in bulk and possibly disclosed and redisclosed, potentially to the detriment of the unknowing consumer. Breuer, Jennifer, J.D., "Preserving the Confidentiality of the Computerized Medical Record," Drug Benefit Trends, 10(5):27-32, 42, 1998.

Historically, medical records have been protected through a patchwork of federal and state laws. For example, medical records are protected under the constitutional right to privacy, with courts generally weighing the individual's rights against the public interest in disclosure. Whalen v. Roe, 429 U.S. 589 (1977); Care v. Pop. Services, 431 U.S. 678 (1977); U.S. v. Westinghouse Elec. Corp., 638 F.2d 570 (3rd Cir. 1980).

To fully understand the difficulty balancing patient privacy with other public policy goals, consider one of the more prominent court opinions on the subject of privacy of medical records, U.S. v. Westinghouse Electric Corp., 638 F.2d 570 (3rd Cir. 1980). In that case, the National Institute of Occupational Safety and Health (NIOSH) received a complaint from a union about an airborne chemical that was creating severe problems for workers. NIOSH wanted the medical records of all current and former employees who had been exposed. Westinghouse objected, and was granted official standing to do so, on its employees' behalf. The question of the public's health and welfare, as opposed to an individual's right of privacy, was the primary issue in the case.

The Court ruled NIOSH was entitled to information, but only after proper notification to the workers involved to give them a chance to "make an individual judgment as to whether he or she regards the information so sensitive that it outweighs that employee's interest in assisting NIOSH in a health hazard investigation." The Court stated that the goal of its decision was to provide an opportunity for the workers to raise their objections and to insure the confidentiality of both the objections and the material itself without impeding the efforts of NIOSH.

28In addition to federal law, many states have passed some sort of privacy legislation although often it is not specifically related to individual health information. In South Carolina, hospitals are required to maintain the confidentiality of medical records under licensure regulations. R. 61-16, § 601.7, S.C. Code Ann.

Physicians are also prohibited from releasing an individual's medical records without express written consent of the patient or the person authorized by law to act on the patient's behalf, unless the release is otherwise authorized by law. S.C. Code Ann. § 44-66-10 et seq. There are also federal and state laws that govern the circumstances and standards under which psychiatric records or records pertaining to substance abuse may be released. See 42 C.F.R. § 2.1 et seq.

DEVELOPMENTS IN SOUTH CAROLINA

It is under this framework that the South Carolina Court of Appeals decided McCormick v. England, 328 S.C. 627, 494 S.E.2d 431 (Ct. App. 1997). In that case the Court recognized a cause of action by a former patient against a physician for a breach of a duty of confidentiality.

In McCormick, a lawyer representing a...