Public Health Law Map - Beta 5 - Medical and Public Health Law Site

should have access to the record. These are still important issues, with access having
become even more difficult a problem in the face of managed care and electronic
records. A third problem has now arisen from the growing concern with insurance fraud:
does the record contain the necessary information to justify the bill for services rendered,
and to prove that they were appropriate services for the patient's condition. Failing to
meet these standards can delay or prevent payment on insurance claims, and, in the
extreme case, result in criminal prosecution or substantial civil fines.
This section deals primarily with medical office and clinic records, rather than hospital
records. Hospital records are governed and audited by many organizations, with the most
common being the Joint Commission on Accreditation of Healthcare Organizations
(Joint Commission). Most state laws and regulations also apply to hospital records. In
contrast, relatively little attention has been paid to medical office records, at least until
the Office of the Inspector General (OIG) began to audit them as part of
Medicare/Medicaid fraud prosecutions. With the increasing pressure to keep patients out
of the hospital, and to do as much care as possible in the medical office, practitioner
records contain the greatest share of modern medical information.
A. Legal Uses of Medical Records
Medical records have an unusual legal status. They are medical care practitioners’
primary business records, but they are also confidential records of information whose
dissemination is at least partially controlled by the patient. This is further complicated
by the ambiguous nature of rules governing physician–patient communications. Unlike
the lawyer–client privilege, which is a traditional common law privilege, there is no
common law physician–patient privilege. Although medical ethics has always
demanded that the physician respect the patient’s confidences, violations were
punished, if at all, as general invasion of privacy cases. In the last 30 years, most state
legislatures have enacted medical privacy laws. These laws are similar in that they
limit the dissemination of medical information without the patient’s consent, and they
provide certain exceptions for this protection, such as allowing the discovery of
medical information when the patient has made a legal claimed based on that
information or when the patient poses a threat to the public health. The federal
government does not provide a general protection for medical privacy outside of
federal institutions, but there is a federal law that protects records dealing with
treatment for alcoholism and substance abuse. [42 U.S.C.A. § 290dd-2.] As part of the
Conditions of Participation for Medicare/Medicaid and Joint Commission
requirements, providers must protect patient confidentiality.
These state and federal privacy laws modify the usual presumption that medical
records, as a business record, are subject to discovery in civil and criminal matters
against the medical care practitioner. When a medical record is at issue in state
litigation against a medical care practitioner, other than cases brought by the patient,
medical records will be protected from discovery unless the plaintiff can show a
compelling reason why the records are necessary to prove its case. Even then, the court
will supervise the discovery and generally require that all patient- identifying
information be removed. If the case is brought in federal court, under federal law,
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