Turncoat Doctors (Continued from page 11)


[t]o a health care provider or the provider’s insurer or legal counsel, all information in a medical record relating to a patient or recipient’s health, health care, or treatment which forms the basis for the issues of a claim in a civil action initiated by the patient, recipient, or person in interest.


Thus, Sections 4-305 and 4-306 pro- vide a limited and qualified waiver of confidentiality of medical records to per- mit investigation of an actual or potential of claim against a health care provider. Importantly, Maryland Health Gen. Code Annot., Section 4-301(g) states that


“Medical record” means any oral, written, or other transmission in any form or medium of informa- tion that: (i) is entered in the record of a patient or recipient; (ii) identi- fies or can readily be associated with the identity of a patient or recipi- ent; and (iii) relates to the healthcare of the patient or recipi- ent. (Emphasis added).


The implication of the definition of


medical record should be clear. A medi- cal record is a chart or other tangible thing in which information about a patient’s medical condition is entered or reflected. The definition of “medical record” stated in Section 4-301(g) is wholly consistent with the legislative purpose of the Mary- land Confidentiality of Medical Records Act.27


That the term “medical record” as


used in the Maryland Confidentiality of Medical Records Act relates to tangible things is also underscored by Maryland Health Gen. Code Annot. Section 4-304, which establishes requirements regarding copies of and changes to “a medical record.” Healthcare providers in Maryland are thus permitted, and under certain circum- stances, required, to release medical records pertaining to their patients with- out authorization of the patient or person in interest. However, based upon the statutory definition of “medical record”, Maryland law does not anticipate that the treating physician can meet with his patient’s adversaries in an ex parte fashion to discuss the patient’s medical care and


27


1990 Md. ALS 480; 1990 Md. Chap. 480; 1990 Md. SB 584


12


treatment.


In other words, Sections 4-


305 and 4-306 confirms and establishes a patient’s reasonable expectation of con- fidentiality in his relationship with a physician under Maryland law. Maryland law, of course, restricts that expectation of confidentiality in certain limited cir- cumstances, but only concerning medical records. While defense counsel in Mary- land may cite to Sections 4-305 and 4-306 as support for the proposition that ex parte communications with a medical malprac- tice plaintiff ’s treating healthcare providers are blessed by the State Legisla- ture, the better interpretation of the statutory language limits any qualified waiver of confidentiality to the medical records themselves. In addition, Judge Wilner’s opinion in


Dingle v. Belin, 358 Md. 354, 749 A.2d 117 (2000), gives strong indication that the Court of Appeals finds ethical opin- ions by the AMA concerning the duties of physicians to patients to be quite per- suasive.


obligation.” Dingle v. Belin, 358 Md. at 374. As basis for his conclusion, Judge Wilner, albeit in a footnote, cited certain opinions of the American Medical Association’s Judicial Council and Coun- cil on Ethical and Judicial Affairs. Dingle v. Belin, 358 Md. at 375, n.3. Judge Wilner’s reliance in Dingle on the American Medical Association’s rules regulating a physician’s practice is con- sistent with his opinion in Post v. Bregman, 349 Md. 142 (1998). In Post, writing for the Court of Appeals and considering the force and effect of the Maryland Lawyers’ Rules of Professional Conduct, Judge Wilner stated that


In Dingle, the plaintiff brought suit against her surgeon claiming negli- gence, battery and breach of oral contract arising from the surgeon’s delegation of surgical duties to a resident, who alleg- edly perpetrated malpractice. In his decision, Judge Wilner found that “the doctor who, without the consent of the patient, permits another surgeon to op- erate violates not only a fundamental tenet of the medical profession, but also a legal


SYNOPSIS: AN ACT concerning Public Health - Medical Records - Confidentiality FOR the purpose of providing for the con- fidentiality of medical records; authorizing disclosure of certain medical records under certain circumstances; requiring disclosure of certain medical records under certain cir- cumstances; requiring a health care provider to establish certain procedures for the addi- tion to or correction of a medical record; authorizing a health care provider to require certain persons to make certain payments; repealing a certain provision on disclosure of medical records of individuals in certain facilities; defining certain terms; providing certain exceptions; providing certain immu- nity under certain circumstances; providing for certain liability under certain circum- stances; establishing certain penalties; pro- viding for a delayed effective date; and gen- erally relating to the confidentiality of medi- cal records. Preamble


WHEREAS, Medical records contain personal and sensitive information that if im- properly used or disclosed may result in sig- nificant harm to the emotional, financial,


Trial Reporter


[u]nquestionably, so thorough a regulation of an occupation and professional calling, the integrity of which is vital to nearly every other institution and endeavor of our so- ciety constitutes an expression of public policy having the force of law.


Post v. Bregman, 349 Md. at 163. Post is distinguishable from Dingle in


that Post involved MLRPC rules promul- gated by the judicial branch of government in the exercise of an inherent duty and responsibility to regulate the practice of law. The American Medical Association is a private organization that cannot claim the standing of an arm of


health care, and privacy interests of a patient or recipient; and WHEREAS, Patients and recipients need access to their medical records to enable them to make informed decisions concerning their health care and to correct inaccurate or incomplete informa- tion about themselves; and WHEREAS, In order to retain the full trust and confidence of patients and recipi- ents, health care providers have an interest in assuring that the information in medical records will not be improperly disclosed, and that clear and certain rules exist for the dis- closure and redisclosure of this information; and


WHEREAS, In order to protect the pri- vacy of a patient or recipient, that disclosure of information from a medical record with- out the authorization of a person in interest be limited to the information that is relevant to the purpose for which disclosure is sought and, when feasible and appropriate, to a re- view of the record by a person who acknowl- edges the duty not to redisclose the identity of the patient or recipient; now, therefore, (end of preamble).


Summer 2002


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