State Supreme Court takes up doctor-patient confidentiality

Published on Sunday, 30 April 2017 21:41
Written by

Associated Press

HARTFORD - The Connecticut Supreme Court will be deciding an issue that most people may think is already settled - whether medical providers have a duty to keep patients’ medical records confidential.

A trial court judge in Bridgeport, Richard Arnold, ruled in 2015 that Connecticut law, unlike laws in many other states, has yet to recognize a duty of confidentiality between doctors and their patients, or that communications between patients and health care providers are privileged under common law.

The decision came in a paternity case where a doctors’ office in Westport sent the medical file of a child’s mother without her permission to a probate court under a subpoena issued by the father’s lawyer - not a court - and the father was able to look at the file.

The mother, Emily Byrne, a former New Canaan resident now living in Montpelier, Vermont, sued the Avery Center for Obstetrics & Gynecology in 2007 for negligence in failing to protect her medical file and infliction of emotional distress. She alleges the child’s father used her highly personal information to harass, threaten and humiliate her, including filing seven lawsuits and threatening to file criminal complaints.

But Arnold dismissed the claims, saying “no courts in Connecticut, to date, recognized or adopted a common law privilege for communications between a patient and physicians.”

The state Supreme Court is scheduled to hear arguments in the case Monday.

Byrne, a nurse, referred questions to her lawyer, Bruce Elstein, who said the case will result in an important, precedent-setting decision by the Supreme Court.

“The confidentiality of medical information is at stake,” Elstein said. “If the court rules in the Avery Center’s favor, the tomorrow for medical offices will be that no patient communications are privileged. Their private health information can be revealed without their knowledge or consent.”

The concept of doctor-patient confidentiality dates back roughly 2,500 years to the ancient Greek physician Hippocrates and the famous oath named after him that includes a pledge to respect patients’ privacy.

The attorney for the Avery Center, James Biondo, wrote in court papers that there is no common law duty for Connecticut doctors to keep patients’ information confidential. He also wrote that Byrne signed a statement for the Avery Center confirming she had reviewed the center’s privacy policy, which notifies patients that it is under no obligation to seek their authorization when complying with subpoenas.

There is a state law that prohibits disclosure of patient information by doctors, but there is an exception that allows for information to be released without the patient’s consent “pursuant to ... the rules of court.”

Elstein argues that the Avery Center failed to comply with the state law as well as the federal law on patient information confidentiality, the Health Insurance Portability and Accountability Act, or HIPAA. The federal law says a medical provider can disclose patient information in response to a subpoena not issued by a judge, if reasonable efforts have been made to notify the patient of the subpoena.

“No opportunity was afforded Emily to object to the disclosure,” Elstein wrote in court documents.

The Avery Center says the appeal before the Supreme Court centers on common law and HIPAA is irrelevant.

This is the second time the case has gone before the state Supreme Court. In a 2014 decision, justices overturned a lower court ruling that dismissed Byrne’s negligent claims because they were preempted by HIPAA and sent the case back to the trial court.

Posted in New Britain Herald, State on Sunday, 30 April 2017 21:41. Updated: Sunday, 30 April 2017 21:43.