October 16, 2006
Focus Column
By Leila Narvid
Patient-litigants may soon find themselves having to disclose far more medical information than they ever anticipated. In California Consumer Health Care Council v. Kaiser Foundation Health Plan, (2006) 142 Cal.App.4th 21, the 1st District Court of Appeal recently ruled that health care providers may make wholesale disclosures of medical information to their attorneys regarding patient litigants. The law does not obligate patients to sacrifice all privacy when they sue for a specific mental or emotional injury, but the new ruling suggests that they should nevertheless expect to be forced to disclose information even collateral to the particular issues in the lawsuit.
California Consumer Health Care Council, a San Francisco-based health care consumer advocacy group, sued Kaiser Foundation Health Plan in 2004 on behalf of the general public, alleging that Kaiser's handling of patient information violated the Confidentiality of Medical Information Act (Civil Code Section 56.10) and patients' constitutional rights to privacy. Suing under the Unfair Competition Law, the council sought to enjoin Kaiser's practice of sharing with its attorneys allegedly irrelevant medical information about patients who were going against Kaiser. The trial court sustained Kaiser's demurrer without leave to amend.
The appellate court affirmed, holding that a patient who sues a health care provider has no reasonable expectation of privacy in medical information - even medical information irrelevant to the lawsuit or potential claim - in the possession of the health care provider. In effect, the appellate court held that attorneys retained to defend malpractice claims have unfettered access to a patient's medical information.
The court examined the legality of Kaiser's practice under the Confidentiality of Medical Information Act and the physician-patient privilege. Under Civil Code Section 56.10(c)(4), a health care entity may give patient information to its attorneys when they are "engaged in reviewing the competence or qualifications of health care professionals or in reviewing health care services with respect to medical necessity, level of care, quality of care, or justification of charges."
The court held that nothing in the statutory language limits disclosure to only relevant information, and that if the Legislature meant for there to be a relevancy limitation in the statute, it would have explicitly done so: "The Legislature ... implicitly found that no reasonable expectation of privacy can be asserted to preclude disclosure of a patient's medical records by a health care provider who is accused of malpractice to the attorney retained to defend that malpractice claim."
The court further held that the physician-patient privilege does not preclude a health care provider from disclosing to its attorney all medical information from a patient who has sued or threatened to sue it, and that Kaiser did not infringe patient privacy rights. When patients place their medical conditions in issue, they do not have a reasonable expectation of privacy as to their medical information. "Such a restriction would, in essence, raise an intolerable barrier between a health care organization like Kaiser and its attorneys."
Under what circumstances, then, does our privacy interest in our confidential medical information warrant protection? When does the vast body of law that protects patients' privacy rights apply? Surely, plaintiffs relinquish the right of privacy as to matters directly relevant to the claim and essential to its fair resolution. For example, in a medical malpractice lawsuit, information directly concerning the issues of negligence or resulting damages should carry no reasonable expectation of privacy. However, patients impart a lot of information to their health care providers in confidence, such as financial and employment information.
Courts in the past have held that collateral information is not necessary to a vigorous defense, and that waiver of physician-patient privilege is limited to the particular health-related issues in the lawsuit. For example, in Britt v. Superior Court, (1978) 20 Cal.3d 844, the court held that plaintiffs are not required to reveal their entire lifetime medical history to the extent that it has not been placed at issue in the litigation. Since then, courts have echoed this sentiment, reiterating that one's medical history falls within constitutionally created zones of privacy, and that waiver is limited to the particular health-related or treatment-related issues in the lawsuit.
The California Consumer Health Care Council court, however, seeks to halt the expansion of patient-litigant privacy rights, making even collateral information fair game. The court said Heller v. Norcal Mutual Insurance Co. (1994) 8 Cal.4th 40 supported the idea that placing one's physical condition at issue via medical malpractice litigation lower's a patient's expectation of privacy regarding that condition. However, Heller also rejected the defense contention that by filing a medical malpractice action, the plaintiff completely waived the doctor-patient privilege even as to the nonparty physician.
California Consumer Health Care Council takes Heller several steps further to say that patient litigants have no reasonable expectation of privacy for any of their medical records as to the attorneys retained to defend the malpractice claim.
California enjoys the reputation of being one of the most, if not the most, privacy-rights oriented states in the nation. More rulings along the lines of California Consumer Health Care Council could signal a dangerous departure from that status and a narrower construction of a patient's "zone of privacy."
Leila Narvid is an associate in the general civil litigation practice group at Sideman & Bancroft in San Francisco.
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