Doctor Liable for Release Medical Records
Attorney
(866) 735-1102 Ext 645
Tags:
None
The North Carolina Court of Appeals has upheld a claim against a medical doctor for the disclosure of mammography films to an expert witness hired by his patient’s former physician.
The patient, in a prior suit, had sued her former doctor for failing to diagnose her breast cancer. The patient lost her case against her former doctor, the defendant in the medical malpractice case arising from an alleged failure to diagnose breast cancer.
The patient then filed a malpractice action against a radiologist who released her mammogram x-rays to an expert witness for the former doctor in connection with the prior malpractice action.
The only claim against the defendant radiologist who released the mammogram x-rays to the expert witness was that he released these x-rays without authorization. There was no allegation that the radiologist committed any malpractice in connection with his performing medical services for the patient.
The trial court had dismissed the claim against the radiologist. The patient appealed to the North Carolina Court of Appeals which upheld the claim.
In upholding the claim, the court wrote: “This court has recognized a claim of medical malpractice based upon the unauthorized disclosure of confidential information . . . . The filing of a medical malpractice suit by a patient against his physician, however, constitutes a limited implied waiver of the physician-patient privilege to the extent the defendant physician may reveal the patient’s confidential communications contained in the defendant-physician’s own records to third parties where it is reasonably necessary to defend against the suit.” However, the court noted that the radiologist, who was not a defendant in the medical malpractice action against the original treating doctor, “disclosed plaintiff’s mammography films to the expert witness. Although the films were related to plaintiff’s malpractice action, the films were not in the possession of a defendant to that action. It follows that, even after plaintiff’s waiver, the films could only be disclosed pursuant to statutorily authorized discovery procedures or pursuant to plaintiff’s authorization.”
“The doctor in the prior malpractice action” had legal possession of the plaintiff’s mammogram films . . . He could have then provided ‘the expert witness’ with the films as a reasonably necessary step in defending himself against the plaintiff’s lawsuit; however, this intermediate step was not taken. The Court of Appeals, therefore, concluded that the patient had asserted a valid claim against the radiologist and the expert witness for the disclosure of her mammogram x-rays.
This case demonstrates the Court’s intention to recognize and preserve the patient-physician privilege which has been recognized in our law for hundreds of years. Communication and information revealed to a treating physician may not be revealed to others except under strict and very limited circumstances. In this day of mass explosion of communications and huge computer data banks which collect information on all of us, sometimes the physician-patient privilege is taken lightly. However, this case demonstrates that the Court does not take this privilege lightly and that strict sanctions will be imposed against all who violate the physician-patient privilege.