Lombardo, Paul A.

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Georgia State University College of LawReading RoomFaculty Publications By Year Faculty Publications6-1-1995Health Care Confidentiality: Current Virginia Lawand a Proposal for LegislationPaul A. LombardoGeorgia State University College of Law, plombardo@gsu.eduFollow this and additional works at: https://readingroom.law.gsu.edu/faculty_pubPart of the Health Law and Policy Commons, Law and Society Commons, LegislationCommons, Privacy Law Commons, and the State and Local Government Law CommonsThis Article is brought to you for free and open access by the Faculty Publications at Reading Room. It has been accepted for inclusion in FacultyPublications By Year by an authorized administrator of Reading Room. For more information, please contact mbutler@gsu.edu.Recommended CitationPaul A. Lombardo, Health Care Confidentiality: Current Virginia Law and a Proposal for Legislation, Dev. Mental Health L., June-Dec. 1995, at 25.Developments inMental Health LawThe Institute of Law, Psychiatry & Public Policy-The University of VirginiaVolume 15, Number 2 June-December 1995Health Care Confidentiality: Current Virginia Lawand a Proposal for LegislationBy Paul LombardoWhat I may see or hear in the course of the treatment or evenoutside of the treatment in regard to the life of men, which onno account one must spread abroad, I will keep to myselfholding such things shameful to be spoken about.'This is Hippocrates' ancient prescription for medical confidentiality. Once presumed only forphysicians, the rule of confidentiality is now a universal ethical requirement for those who work inhealth care settings, including psychologists, social workers and others who provide mental healthservices. The ethical norm for practitioners is matched by an expectation on the part of patientswho yield the secrets not only of their bodies, but of their minds, in an effort to achieve health.Some have argued that developing practice trends give too many people access to a patient'srecords. As a result, the foundation of trust characteristic of the doctor/patient relationship haseroded, they say, and the ethic of shared secrets is threat-ened.2 Additionally, the new technologies that require com-puterized medical records and convenient electronic data Also in this issue:transmission have made the protection of clinical informationdifficult. Legal practice has also evolved, and demands for In the Federal Courts........28medical evidence in all types of litigation-from personal in- In the Virginia Courts ....... 32jury, to employment actions to child custody-have become In Other State Courts........39commonplace.Certain kinds of medical innovations have led to propos- Case Index .......................... 44als for new laws. For example, the availability of previouslyunknowable genetic information set the stage for the devel-Is your address correct? We're updating our mailing list of Virginia residents.If we haven't already heard from you, and you wish to continue to receiveDevelopments, please call Margaret Reitz at (804) 924-9848.Developments in Mental Health Lawopment of a model genetic privacy act,3 and general concerns over the possibilities for abuse ofelectronic medical records have yielded calls for a comprehensive national law to regulate medicalconfidentiality. A bill that would accomplish that goal has recently been introduced in Congress.,In the judicial arena, the importance of mental health confidentiality is coming into focus as theUnited States Supreme Court reviews the application of the psychotherapeutic privilege to actionsin federal courts.,Meanwhile, though some federal statutes provide extraordinary protection for certain kinds ofrecords,6 and occasional exceptions that supersede state prohibitions on disclosure,, medical con-fidentiality is generally a creature of state law.Virginia Confidentiality LawVirginia's law relating to confidential medical or mental health information is contained in apatchwork of statutes that are difficult to find and more difficult to understand and apply. Takentogether, those laws neither instruct the subject of sensitive information when his or her expecta-tion of confidentiality will be respected, nor clearly alert the professional when a disclosure ofconfidential information is appropriate. Ironically, while there are as many as fifteen different stat-utes that allow or require doctors and psychotherapists to breach patient confidentiality, there isno statute in Virginia that specifically requires confidentiality to'be maintained in both public andprivate therapeutic contexts. (See Table 1.)There are, however, several statutes that protect some features of medical and mental healthconfidentiality. A statute on the "Rights of Patients and Residents" of facilities operated, fundedor licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Ser-vices promises "legal rights and care consistent with basic human dignity." A specific provision ofTable 1: Virginia Law Allowing or Requiring the Disclosure of Patient Information§ 32.1-36 ......... physician must report HIV+ patients, children with STDs§ 32.1-37 .......... medical care facility directors and others must report certain diseases§ 37.1-226 ........ patient "deemed" to consent to disclosurefor purpose of insurance reimbursement§ 46.2-401 ........ medical directors of state facilities must report discharged mental patients unable tooperate motor vehicles to Department of Motor Vehicles§ 54.1-2400.1... health professional immunity for making reports to police and others concerningpatient threats§ 54.1-2906 ...... hospital's duty to report disciplined or impaired health professionals§ 54.1-2907 ...... practitioner's duty to report impaired heath practitioners§ 54.1-2908 ...... health professional organization's duty to report disciplined members§ 54.1-2909 ...... organizational duty to report malpractice, discipline in other states, professionalincompetence, etc.§ 54.1-2966 ...... physician to report the disability or infirmity of a person licensed to operate aircraft§ 54.1-2966.1 ...physician to report the disability of aperson licensed to operate a motor vehicle§ 54.1-2967 ...... physician to report wound inflicted by certain weapons§ 54.1-2968 ...... physician immunized for identifying anyperson under the age of 22 who has physicalor mental handicapping condition§ 63.1-55.3 ....... physician and others must report evidence of adult abuse§ 63.1-0248.11 physician and others must report evidence of child abuse§ 65.2-607 ........ workers'compensation exam by physician designated by employer notprivilegedPage 26July-December 1995Volume 15, Number 2Developments in Mental Health Lawthe statute allows a facility resident to"[h]ave access to his medical and mentalrecords and be assured of their confidential-ity ....,,Another statute settles the ownership ofmedical records in health care providerswhile simultaneously mandating that "pro-viders shall keep medical records confidentialand only authorized personnel shall have ac-cess to such records." 9The only other broad legal protection ofconfidential information is provided by aprivilege against compelled disclosure in thelitigation context.The Privilege Statutes:Virginia Code §§ 8.01-399; 8.01-400.2Two statutes protect against compelledcourt disclosure of confidential informationcommunicated during a health encounter.Section 8.01-399 covers communicationsmade to physicians and other "duly licensedpractitioners of the healing arts," specificallyincluding clinical psychologists. The privi-lege insulates "any information... acquiredin attending, examining or treating the pa-tient in a professional capacity." It is opera-tive in civil (but not criminal) litigation ex-cept when the patient's physical or mentalcondition has been put at issue, or in thecourt's judgment when "necessary to theproper administration ofjustice." Thoughcourts have broad discretion under this stat-ute to compel disclosures concerning other-wise confidential communications, the prac-tices of trial judges are quite variable. Attimes confidentiality is honored even incriminal trials-though the statute does notprotect it.io At other times, though confiden-tial medical information has seemed particu-larly relevant to fair adjudication, the judge'sdiscretion in excluding it from a civil trial hasbeen upheld."-continued on page 41-Developments inMental Health Lawis published by the Institute of Law,Psychiatry and Public Policy, with thesupport of funds from the VirginiaDepartment of Mental Health, MentalRetardation and Substance AbuseServices. The opinions expressed in thispublication do not necessarily representthe official position of either the Insti-tute or the Department.Developments in Mental Health Law isdistributed free of charge to Virginiaresidents twice a year, and to out-of-state subscribers at an annual rate of$20. If you are not currently on ourmailing list but would like to receive thispublication, please send your full nameand address with your subscriptionrequest to Box 100, Blue Ridge Hospi-tal, Charlottesville, VA 22901. Changesof address should include both old andnew addresses. This publication is alsoavailable electronically over the WorldWide Web at the following address:http://www.ilppp.virginia.edu/ilppp.Letters, inquiries, articles and othermaterials to be submitted for publicationshould be directed to the editor.EditorPaul LombardoManaging EditorMargaret Hand ReitzAssistant EditorMichael FurloughStudent ContributorsRuth Heltzer BockISSN 1063-9977Page 27Volume 15, Number 2 July-December 1995Developments in Mental Health LawHealth Care Confidentiality...-continued from page 27-A similar statute (§ 8.01-400.2) applies to communications between licensed professionalcounselors, licensed clinical social workers and licensed psychologists, and their clients. Theprivilege it establishes is also limited to civil actions and contains most of the same exceptions ofthe companion statute (§ 8.01-399), as well as a specific cross reference to the statutory require-ment of reporting child abuse.Though these laws can provide a harbor against compelled revelations of confidential matterin court, they provide inadequate barriers to other improper disclosures of personal information.This inadequacy was highlighted in a recent Virginia Supreme Court opinion involving a medicalmalpractice claim for breach of confidentiality.Pierce v. CadayA woman consulted her physician for advice and a prescription sedative, asking that the"highly confidential" nature of their discussion be respected. She later found that details of herconversation with the doctor had been repeated by his employee to her coworkers. A suit fol-lowed, alleging that the doctor's failure to control his employees amounted to breach of an ex-plicit contract of confidentiality.12 The trial court dismissed the suit, questioning both the form (acontract action) and the substance (an allegation of wrongful disclosure of information) of thewoman's legal claim.On appeal, the Supreme Court upheld the trial court's decision because the plaintiff had notcomplied with provisions of the malpractice act. It agreed that the claim was properly character-ized as an action in tort, not a contract. The analysis of doctor/patient confidentiality that fol-lowed was instructive:While the General Assembly implicitly has recognized the existence of a qualified physi-cian-patient privilege in Virginia, the only explicit statutory pronouncement of the privi-lege is an evidentiary rule restricted to testimony in a civil action.... In the present case,the plaintiff seeks to fashion a cause of action for recovery in damages out of what hasthus far been recognized in Virginia as merely a rule of evidence.Some states, the Court noted, had recog-nized wrongful disclosure of medical informa- The Virginia Supreme Court hastion as a valid tort claim; others had not. Be-cause the plaintiff and defendant presumed that chrcteiedthal prlegethe claim was valid, the issue was not put to for confidentiality as "merely athe Court, thus a decision on whether to judi- rule of evidence."cially recognize such a cause of action was un-necessary. The Court could "assume without deciding" that such an action would be available.The Pierce case dramatized the absence of clear statutory protection in the Code of Virginiafor medical and mental health confidentiality in contexts other than the courtroom.Page 41Volume 15, Number 2 July-December 1995Developments in Mental Health LawProposed Confidentiality LawFor the past two years, the Committee on the Needs of the Mentally Disabled of the VirginiaBar Association has studied the problem of medical and mental health confidentiality. Followinga review of laws in other states and consultation with lawyers and representatives of health pro-fessional associations, the Committee drafted acomprehensive bill that has been introduced tothe Virginia General Assembly. The bill is an attempt to formulateHouse Bill 750 is an attempt to formulate a a comprehensive legislative state-comprehensive legislative statement and to set a ment on the subject of medical andgeneral standard on the subject of medical and mental health confidentiality.mental health confidentiality in Virginia law. Itaddresses current deficiencies in the law, whileproviding clear legislative guidance to both patients and practitioners concerning appropriate legalduties, responsibilities and expectations.The draft legislation is divided into six sections. Section I provides definitions of commonterms used throughout, and clarifies the scope and coverage in the act. For example, the defini-tion of "provider" affected by the proposed law mirrors the use of that term in Section 8.01-581.1 (listing all health care practitioners affected by the Medical Malpractice Act) but unlike thatsection of the Code, also includes state facilities, as well as anyone licensed by the boards withinthe Department of Health Professions. "Records" protected by the law include all material main-tained in any form, along with the substance of any communication made by a patient to a pro-vider in the course of receiving health services.Section II recognizes a right of privacy in a patient's medical records. It establishes the gen-eral principle that disclosure of records is prohibited without patient consent or unless it is other-wise permitted under conditions set forth in the law.Section III describes the scope of coverage of the law, noting that release of information un-der provisions of the workers compensation statute is not affected, nor are the records of minorpatients, in most cases. It also authorizes limited disclosures to caretakers of mental health pa-tients.Section IV lists twenty-five specific situations in which disclosure of patient information ispermitted. This section cross-references most current law that mandates or authorizes disclosure,such as child and adult abuse reports or reports on impaired practitioners. It also incorporatesexisting provisions of Section 8.01-413 regarding medical records.Section V enumerates the requirements for responding to requests for records from patientsor anyone else, and it includes a suggested form for providing consent to release of confidentialhealth care information. It also incorporates procedures contained in current Section 32.1-127.1:02 for the copying of medical records.Section VI outlines in detail the procedure to be followed for issuing subpoenas to health careproviders. It includes strict requirements of notice to the patient and the patient's attorney, andthe time line that must be met before records may be released by a provider. A new provision ofthis section would require lawyers seeking records to notify patients of their right to object to asubpoena. The section supplies the legal standard the court should apply when challenges to sub-poenas are filed.Taken as a whole, the proposed legislation would have several beneficial effects. By cross-referencing existing statutes concerning confidentiality, it establishes a single reference point onD--- AlVolume 15, Number 2 July-December 1995Developments in Mental Health Lawthat topic in the Code for patients, providers and lawyers. It gives those who create and maintainpatient records clear guidance concerning prohibited and permitted disclosures. It requires law-yers to notify patients before disclosures of private information contained in their records aremade in response to a subpoena, and it alerts patients of their right to object to the disclosures. Itclarifies how providers can comply with subpoenas without violating the law and gives patients anexplicit right to their records. Finally, it announces a strong legislative policy in favor of confiden-tiality, long an expectation of patients and an ethical mandate for practitioners, though never be-fore so clearly protected by Virginia law.Direction for both the legal and health care communities on the extent and limit to patientconfidentiality is long overdue. Whether the law will finally reflect both patient expectations andthe ethical norms of the health care professions is a matter to be addressed in the current sessionof the General Assembly.[The full text of the Virginia Health Care Confidentiality Act may be viewed on the Internet athttp://www.ilppp.virginia.edu/ilppp/medconf.html].Paul Lombardo, Ph.D., J.D., is editor of Developments in Mental Health Law, and Director of the Mental Health LawTraining and Research Center at the Institute of Law, Psychiatry and Public Policy.Notes1. Ludwig Edelstein, "The Hippocratic Oath: Text, Translation and Interpretation." Bulletin of the Historyof Medicine. (Supplement 1, 1943).2. Mark Seigler, "Confidentiality in Medicine-A Decrepit Concept." New England Journal of Medicine(December 9, 1982, p. 1582).3. Annas et al., The Genetic Privacy Act, 1995.4. U.S. Senate Bill 1360, Medical Records Confidentiality Act of 1995.5. Jaffee v. Redmond 51 F. 3d 1346 (CA 7, 1994) cert granted, 64 USLW 3281 (existence of psychothera-pist/patient privilege under Federal Rules of Evidence).6. Federal Confidentiality of Drug and Alcohol Abuse Patient Records, 42 USC § 290dd-3; 42 CFR Part 2.7. Developmental Disabilities Act (access to Program Records by Advocacy Program authorized to investi-gate abuse) 42 USC § 6042 (a) (1); similar provisions under the Protection and Advocacy for Mentally Ill Indi-viduals Act (PAMI) 42 USC § 10801-501.8. Va. Code § 37.1-84.1; accompanying Rules and Regulations to Assure the Rights of Residents of Facili-ties contain lengthy provisions concerning permitted and prohibited disclosures of patient information andrecords, VR 470-03-01 (July, 1983).9. Va. Code § 32.1-127.1:02 Medical records; ownership; provision of copies; § 54.1-2403.3 contains sub-stantially the same language concerning provider ownership of records.10. For example, Wilson v. Commonwealth 1995 WL 293050 (Va. App.) (unreported decision ), (appeal fol-lowed exclusion of records of a mentally retarded complaining witness in a sexual battery prosecution ).11. See, for example, Peoples Security Life v. Arrington 243 Va. 89, 412 S.E.2d 705 (1992), holding that theexclusion of medical records of a woman whose husband died of stabbing and gunshot wounds incurred while sit-ting next to her in their auto and who later claimed the proceeds of his life insurance policy was nonethelesswithin the discretion of the court.12. Pierce v. Caday 244 Va.285, 422 S.E. 2d 371 (1992); see 13 Developments in Mental Health Law 5(1993) for details of the case.Page 43Volume 15, Number 2 July-December 1995

Health Care Confidentiality: Current Virginia Law and a Proposal for Legislation

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Health Care Confidentiality: Current Virginia Law and a Proposal for Legislation

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