A Discussion on Medical Records and Right to Privacy

Saturday, January 14, 2006 | 0

The following set of questions and answers recently appeared in our California Professional Forums.The editors felt this discussion was instructive and informative regarding WCAB procedure. Though this thread dealt specifically with California law, the concepts discussed are broad and applicable in every state. The post has been edited slightly for readability, grammar and punctuation.

Q: Applicant is trying to withhold the name of a personal doctor who did not treat him for any orthopedic injuries (he's only claiming ortho injuries). He feels he should not be forced to tell the name of his personal doctor if that doctor did not treat him for the body parts related to his work injury. I remember a post a while back that discussed this but couldn't find it. Anyone know where it is? Isn't there some constitutional case law on this topic? Any help?

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A1: Labor Code 4663 and Labor Code 4664 --- are the authority -- if you are hiding something or refusing to reveal, I as a jaded defendant am sure I am entitled to apportionment and since the applicant is not a medical professional they cannot pick and choose what they disclose because they do not know that the neuropathy from their diabetes is apportionable. Per HIPPA there is no medical confidentiality for records once you file a comp claim, only confidentiality is for AIDs and you get to Jane or John Doe your file.

A2: Wow, this reminds me of the current NSA flap and the cogent response - "nothing so lowly as a statute can modify the constitution."

Naturally, the analysis starts with the nature of the right of privacy. It is found in the California constitution, and implied in the federal constitution. Being a constitution right a statute cannot revoke the right, period. So, the question becomes waiver of the right by placing medical condition in issue.

The California Supreme Court and lower courts have visited this area ad nauseum. It is astonishing that practitioners in an area where the issue pops up every single day don't understand the law and respond by saying - "we get it all". I think this is yet another example of "we always did it this way" rather then actually reading the law. Interestingly, in the PI area, all DA's understand this quite well and don't usually bother pushing too hard if the plaintiff attorney knows what is going on.

If the person puts the body part in issue then off course all medical history as to that body part is fair game, as well as history that may affect or be affected by part in issue. But this does not mean carte blanche for all medical history. Read Allison 72 CA4th 654 and the cases cited therein. It is not a difficult concept. The Rutter Group also has a fine discussion of the principle. But filing a comp claim is not carte blanche by any means as far too many suggest. And, the tired argument, "Well, how do we know unless we look" has been shot down over and over again. Just read the cases.

So along comes LC 4663-64 and the defense says, "Aha, now we get everything!" Wrong! A statute cannot trump a constitutional right. Filing a comp claim does not open a medical history. Again, just read the cases. A statute could expand waiver, which arguably 4663 does, so one needs to look at the case law and understand the limits of the waiver doctrine.

Case law states,

"Notwithstanding waiver of a statutory privilege, a patient retains the more general right to privacy protected by the state and federal Constitutions. Thus, any waiver must be narrowly construed and limited to matters "as to which, based upon [the patient's] disclosures, it can reasonably be said [the patient] no longer retains a privacy interest." San Diego Trolley, 87 CA4th 1083.

So, LC 4663/64 must be narrowly construed. Along with the narrow construction rule is the less intrusive method rule. If the defense seeks some evidence its offer or proof can show is RELEVANT (not possibly leading to the discovery of admissible evidence which does not apply to privilege inquiries) then it must first show the method it seeks obtain the evidence is the least intrusive method possible. So, when DA asks for every doctor for the last ten years or family doc, absolutely not - no way! There is no offer of proof how the entire records of these docs are directly relevant nor is there any showing of exhaustion of less intrusive means. The defense, again argues how are we supposed to prove it unless we see it, but that has been rejected. The better defense argument is that the record may disclose another area of impairment. True, perhaps, but then they have to show that in order to prove that other impairment there is no less intrusive manner and there is. You ask the applicant and depose anyone else who has observed the impairment. But the bottom line is that the DA is not entitled to pap smears, hemorrhoids, ingrown toenails and the like unless direct relevancy is shown first and there is no less intrusive method of finding out about the other alleged impairment.

Interesting that the comment prior was that a motion to compel was never lost. (If the question was list family docs not providing ortho in an ortho case either the AA defending was incompetent or did not care.) As an AA I have never had a judge grant carte blanche and it has been tried many times. Once the DA agrees to narrow the request to conform to privacy standards, okay, we can talk, but 1) all hospitalizations, 2) family doc, 3) all docs for past 10 years, 4) name of private insurers - no way. I've never lost on these questions and would be happy to share P's & A's with anyone who asks. I my opinion the AA that let's those questions slide is doing themselves and client a disservice. If it is calculated, fine. But to allow carte blanche, just wrong from a craftsmanship point of view if nothing else.

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