Medical Records and the Law

380 CHAPTER 10: DISCOVERY AND ADMISSIBILITY OF MEDICAL RECORDSthe child outweighs the parents’ interest in keeping their medicalrecords confidential. 19 This balance may be struck at the legislativelevel also.The Illinois confidential communications statute specificallyprovides that the privilege does not apply in civil or criminal actionsarising out of the filing of a report under Illinois’s Abused and NeglectedChild Reporting Act. 20 In this situation, a court may attemptto partially protect the physician-patient privilege by allowing a privateexamination of medical records by the court and other parties, ratherthan admitting entire records into evidence.Courts have held that the prosecution of a crime is an important publicinterest. 21 Courts also have generally permitted the broadscale discoveryof patient records in the context of fraud investigations. In a NewYork case, a trial court ruled that a hospital under investigation forMedicare violations was required to turn over the billing and medicalrecords of 96 former patients to a grand jury. Noting that “the privilegewas never intended to prevent disclosure of evidence of a crime,” thecourt refused to grant the hospital’s request to quash the grand jury’s subpoenas.22 Similarly, a California court ruled that a physician whoserecords were seized as part of a Medi-Cal fraud investigation was not entitledto a hearing to assess whether the physician-patient privilege protectedthe records. The court found that allowing a physician accused offraud to assert the privilege would serve the physician’s, rather than thepatients’, interest. 23 In an Ohio fraud investigation, a court ruled that aphysician could not assert the physician-patient privilege as a shield fromcriminal prosecution. Although the records seized from the physician’soffice were admissible in that case, the court cautioned that they were requiredto be redacted by concealing the patients’ names. 24A federal district court in Maryland found another public interest inthe investigation of licensees by the state’s medical review board of professionalconduct. 25 In this case, a group of patients challenged an ad-19See, e.g., Bieluch v. Bieluch, 462 A. 2d 1060 (Conn. 1983); In re Baby X, 293 N.W. 2d 736(Mich. Ct. App. 1980); In re Doe Children, 402 N.Y.S. 2d 958 (Fam. Ct. 1978); Wakefield.20735 Ill. Comp. Stat. Ann. § 5/8-802(7).21See, generally, Wakefield.22People v. Doe. See also In re Pebsworth, 705 F. 2d 261 (7th Cir. 1983).23Brillantes v. Superior Court of Los Angeles County, 51 Cal. App. 4th 323 (Ct. App. 1996).24Ohio v. McGriff, 669 N.E. 2d 856 (Ohio Ct. App. 1996).25Patients of Dr. Barbara Solomon v. Board of Physician Quality Assurance, 85 F. Supp. 2d 545(D. Md. 1999).