Doctor Liable for Release Medical Records

Brent Adams — Mon, 09 Feb 2009 09:07:00 GMT

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.

Originally posted at InjuryBoard by Brent Adams

Medical Malpractice Insurance Companies Making A Killing

Brent Adams — Sun, 01 Feb 2009 20:59:48 GMT

The next time you hear someone talking about a “malpractice crisis” think about American Physicians Capital.

In a glowing feature article in the January 12, 2009 edition of Barron’s Business and Financial Weekly stock analysts had high praise for the malpractice insurance company and noted that: “it’s difficult to find any company more insulated from economic weakness than this one”.

In a time when most stocks have fallen by at least 50 percent, the stock in American Physicians Capital keeps rising.

From a $10.00 per share price in 2004, stock has risen to nearly $50.00 a share.

The article contained some interesting statistics which belies the claims of the insurance companies that there is a “malpractice crisis”.

The article notes that the company has cut claims in half compared with five years ago.

In interviews with the management of American Physicians Capital it was revealed that the company pays out on only 20 percent of the lawsuits filed. This is in keeping with the national statistics which show that patients only win one out of every five cases that actually go to court.

More significantly, the company noted that the size of the settlements has been trending significantly lower.

The company explains that part of the reasons that settlements are significantly lower is: “the new hard-line way we fight cases, and part of it is reform that has set damage caps”.

The chief executive of American Physicians Capital, Kevin Clinton, also claimed that the significantly lower settlements: “is also due to the way juries have stopped giving ridiculous billion dollar awards”.

The truth is, no insurance company has ever had to pay a billion dollar award in a medical malpractice case. Nevertheless, this type of rhetoric has given rise to what many of the public feel is a “malpractice crisis”.

Interestingly, the article notes that the company two years ago told its lawyers to stop accepting “court-house-step” settlement offers. The company felt that the settlements encouraged more claims from certain attorneys and that the new practice is one of the reasons that the claims have been cut in half compared with five years ago.

The company also has instituted formal training for doctors on how to improve communication with patients.

The company charges annual premiums depending upon the specialty involved between $200,000.00 and less than $20,000.00 per year.

The article did not indicate whether premiums have gone down since claims have been cut in half five years ago. There is a mention, however, of “what looks to be a temporary round of price cutting among local competitors”.

Before you shed crocodile tears for malpractice insurance companies who claim they are in the middle of a “malpractice crisis”, you should note that American Physicians Capital earns 16 percent on its total investment equity. Wouldn’t it be nice if we could go down to the bank and earn 16 percent on our savings account?

The article noted that the insurance company makes this high rate of return in part by handling claims strictly to minimize the payouts.

Originally posted at InjuryBoard by Brent Adams

Raleigh Personal Injury Lawyer - Medical Malpractice

Doctor Liable for Release Medical Records

Medical Malpractice Insurance Companies Making A Killing