Medical Records in Georgia

Confidentiality and Release of Medical Records in Georgia

by W. Richard Dekle
Tuesday, November 28, 2000
I. INTRODUCTION - NATURE AND PURPOSE OF A MEDICAL RECORD

A medical record is a written collection of information about the patient, the patientâ??s medical condition and the treatment given to the patient. The record satisfies numerous purposes:

1. The record serves as a data base with respect to each patientâ??s condition. The patientâ??s physical examination and findings, history and lab results all go into the medical record. In making decisions concerning a patientâ??s care, the physician needs information. The medical record serves as the collection point for that information;

2. The record serves as the medium for communication among healthcare professionals involved with the patientâ??s care. The attending physician writes orders for implementation by the nursing staff. Consulting physicians enter their diagnoses for the benefit of the attending physician and the nurses enter their notes and observations which aid the physician in assessing the patientâ??s progress. When healthcare professionals communicate verbally about the patient, the medical record documents that communication;

3. The information in the medical record may serve as input for statistical data for research and studies;

4. The record provides data needed for institutional evaluation, licensure and accreditation and may provide information for peer review, utilization review, quality assurance programs and may be used to determine the level of patient care rendered at the institution;

5. The medical record will provide a documentary history in the event the patient brings a suit against the physician or facility.

II. CONFIDENTIALITY AND PRIVILEGE OF MEDICAL RECORDS

Medical records are generally understood to contain information that is â??privateâ? to the patient. But what are the actual legal mechanisms which make the information private or confidential?

A. Statutory Privilege.

The strongest mechanisms that protect the privacy and prevent the disclosure of some medical records are laws which make certain information privileged. Only limited types of medical records are privileged. Georgia law has recognized that some communications are excluded from evidence and discovery for public policy reasons. The privileged information includes communications between an attorney and a client, between a husband and wife, among grand jurors and, with application to medical records, between a psychiatrist or a psychologist and a patient. O.C.G.A. § 24-9-21; Attachment â??A.â?

AIDS confidential information should also be considered privileged. Georgia law provides that AIDS confidential information should not be disclosed except in certain limited circumstances. O.C.G.A. § 24-9-47; Attachment â??B.â? Attaching the label of â??privilegedâ? to a document or a type of information is generally the highest form of protection from disclosure and means that the information will not be disclosed except in very rare and defined instances.

B. Limited Privilege. (Statutes making medical records confidential.)

Georgia law provides that physicians or hospitals or healthcare facilities shall not be required to release medical information except under certain circumstances which include authorization or a waiver by the patient, court order, subpoena and to the extent that the patient places his health in issue in a civil or criminal proceeding. O.C.G.A. § 24-9-40; Attachment â??C.â? This statute makes medical records confidential. This statute also provides that where the medical information is released pursuant to the provisions of this statute, i.e. authorization by the patient, appropriate court order or subpoena, then the healthcare provider will not be liable for the release of the information.

In most cases, O.C.G.A. § 24-9-40 will be the statute that governs requests for medical records. There are multiple exceptions, however, which are covered in Section III.

C. Patientâ??s Right to Privacy.

There is a cause of action under Georgia law for invasion of privacy which has application to medical records. The two torts under the â??Invasion of Privacyâ? umbrella which have the most application to medical records are: 1) intrusion upon a personâ??s seclusion or into his private affairs, and 2) public disclosure of embarrassing private facts.

 

An example of intrusion upon a personâ??s seclusion or into his private affairs occurred in the Georgia Supreme Court case of Bazemore v. Savannah Hospital. In 1930 in Savannah, Georgia, the Bazemore child was born with its heart outside of its body. An operation was performed to try to save the child but it was unsuccessful. The hospital permitted photographs of the child to be taken and later published in the local newspaper. The Supreme Court of Georgia held that the Bazemores had a claim against the hospital for invasion of their rights of privacy.

The tort of public disclosure of embarrassing private facts could arise from any of a number of scenarios where a patient had disclosed to a physician information which is embarrassing to the patient and which the physician improperly disclosed.

D. Ethical considerations.

Doctors are of course bound by their own rules of ethics concerning the confidentiality of a patientâ??s information.

E. Miscellaneous sources of confidentiality.

1) Records concerning child abuse and/or child controlled substance or marijuana abuse are confidential. O.C.G.A. § 49-5-40;

2) Records concerning nursing home resident abuse are confidential pursuant to O.C.G.A. § 31-8-86;

3) Information concerning rape victims is confidential. O.C.G.A. § 16-6-23;

4) Records concerning medical review committees or peer review committees are privileged. O.C.G.A. § 31-7-143.

III. RELEASE OF MEDICAL INFORMATION

Georgia law provides that where a healthcare provider releases information pursuant to laws authorizing disclosure, the provider shall not be liable for making the disclosure. The methods of lawful release may generally be by patient request, subpoena, and court order.

A. Requested Release.

A patient may request that his medical records be released to himself or to a third party. O.C.G.A. § 31-33-2; 24-9-40. Therefore the confidential and/or privileged nature of medical records may be waived by the patient.

Where a request comes from someone other than the patient, a release should be obtained before providing the records. (Form Release, Attachment "D.") When a patient requests his or her medical records, the doctor should be sure that the request is in writing and a copy of the records should be released to the patient. Doctors often are hesitant to provide medical records to a patient following the patientâ??s or the patientâ??s attorneyâ??s request - - particularly where there has been a bad outcome - - because of the fear of a potential lawsuit. In the event that a patient is considering a lawsuit, attempting to withhold records or delay the lawsuit may have the effect of ensuring that one is actually filed. This is because the patient or the lawyer will become suspicious when records are withheld. Moreover, once the lawsuit is brought, the records will be obtained anyway. Where a doctor has reason to believe that a lawsuit is imminent, it is important that the medical records not be altered. Medical negligence is one cause of action but fraud is a second cause of action which can have far worse implications for the guilty party. Instead, make sure that the record is complete and that all test results that are supposed to be contained in the record are returned and in the record and that any dictated notes are transcribed and placed in the record, provided that is the normal procedure.

 

B. Subpoenas.

A subpoena is a document issued, usually by a Court, which requires the recipient to comply with its terms under penalty of law. Subpoenas may require the production of documents or things. Subpoenas may be for attendance at a trial or a hearing or for a deposition. (Sample subpoena, Attachment "E.")

If a person receives a subpoena which he or she believes is improper for any reason, a motion may be made to quash or modify the subpoena or require the person seeking it to pay reasonable costs in producing the materials requested.

C. Requests for Production of Documents.

A healthcare provider may receive a Non-party Request for Production of Documents in connection with ongoing litigation. O.C.G.A. § 9-11-34(b); Attachment â??F,â? sample Request, Attachment "G." A healthcare provider who is a non-party must wait ten days before responding to the request. During this period, the provider or any party may be file an objection to the request with the Clerk of the issuing court. If no objection is filed within that time period, the provider must comply with the request within 30 days. A request is often for a "certified" copy of medical records. This means that the custodian certifies that the copy is true and correct (Attachment "H"). Of course, care should be taken that the record is complete and accurate before it is certified.

IV. SUGGESTED PROCEDURES FOR DEALING WITH RECORDS REQUESTS, SUBPOENAS, AND INFORMAL REQUESTS FOR RECORDS

 

In order to properly respond to any request for medical records, the healthcare provider must consider: 1) who is seeking the records; and 2) what is contained in the records. Where a patient requests his or her own records, care should be taken that the records are complete and a copy of the records should be provided to the patient. Requiring written request from the patient will document that the patient has, in fact, requested the records and that they have been produced. The only exception to releasing a patientâ??s chart to the patient is in the rare instance where release of medical information of the patient will be harmful to the patient. In that instance, advice of counsel should be sought.

If the patient requests that records be produced to some third party such as their attorney, make sure that you have a written release (Attachment "D") contained in your file and that care is taken that the copy is complete before producing it.

Where records are sought by subpoena or request for production of documents, the healthcare provider should ascertain whether the patient is represented by an attorney and, if so, contact that patientâ??s attorney in writing, providing them with a copy of the subpoena and/or request for production of documents and inquire whether they intend to object to the production or whether the healthcare provider should proceed with the production.

Where the patient is not represented by an attorney, the patient should be contacted directly and in writing and inquiry should be made as to whether the patient intends to object to the subpoena or request. If the patient informs the practitioner that he or she has no problem with the production of the records, then that fact should be confirmed in writing to the patient and the practitioner should go forward with the production. The exception to this is where the records contained privileged information. Where the records contained information protected by the psychiatrist-patient privilege, AIDs confidential information or highly sensitive medical information, and the patient is not represented by an attorney, the safer course is to contact the practitionerâ??s own attorney and request that they object on the patientâ??s behalf.

If the patient states that he or she does not want the records produced but is incapable of or not planning on filing an objection, then the practitioner should contact his own counsel to file an objection to the request for production or subpoena.

In the event the medical records contain information protected under the psychiatrist or psychologist patient privilege, AIDS confidential information, substance abuse, abused child or nursing home resident, or rape victim information, and the patient is not represented by counsel, then the healthcare providerâ??s counsel should be consulted and an objection filed.

V. CONCLUSION

The law concerning the confidentiality and release of medical records in Georgia is confusing and is contained in many different statutes, and in some instances, in case law. The practitioner would be wise to consider any request for medical records from the perspective of what liability can result to the practitioner by releasing the requested information. (And, of course, what harm or embarrassment to the patient could result from release of the records.) With this goal in mind, the practitioner must consider who is seeking the records and, if it is not the patient, whether the patient has had an opportunity to object to their production or whether it may be necessary for the practitioner to make objection on behalf of the patient because of what is contained in the records. Where medical records contain privileged information under the psychiatric patient privilege or AIDS confidential information, the practitioner would do well to contact his or her counsel to make an objection to the request under the appropriate statute.

Care should be taken to prevent the improper disclosure of a patientâ??s medical record because, once a patientâ??s confidences and secrets are revealed, that cannot be undone. To put it in complex scientific terms, an ounce of prevention is worth a pound of cure.