Access ot Confidential Medical Records and Information

Subject:

Requested By: Mr. I. O. Wilkerson, Jr., Director Division of Facility Services Department of Human Resources

Question: May the requirement that a patient be advised in writing that he has the right to object in writing to the release or review of information from his medical records be met by posting signs in conspicuous places, including but not limited to the admitting and business offices?

Conclusion: No, posting a sign is not sufficient notice under Chapter 586 of the 1981 Session Laws.

House Bill 815, ratified as Chapter 586 of the 1981 Session Laws of North Carolina, contained amendments to a number of statutes, designed to give representatives of the Department of Human Resources access to the medical records of certain health care facilities during licensure inspections of the facilities. Access to the records is necessary to ensure compliance with the administrative regulations impose minimum standards for the operation of the facilities and include specific provisions concerning maintenance of patient medical records. see, e.g., 10 NCAC 3C. 1400 and 10 NCAC 3H. 0106(c).

North Carolina recognizes a testimonial privilege for communications between physician and patient by statute. G.S. 8-53. The original language of G.S. 8-53 addressed only the confidentiality of actual communications between the physician and patient; but subsequent case law extended the privilege to any portion of a patient’s medical record which was made by or at the direction of a treating physician and resulted from communications and information obtained in the course of treating the patient. Sims v. Insurance Co., 257 N.C. 32, 125 S.E.2d 326 (1962). This has been incorporated into G.S. 8-53. The privilege accorded by G.S. 8-53 is recognized solely for the benefit of the patient, not the physician or health care institution; it may be waived only by him. Johnston v. Insurance Co., 262 N.C. 253, 136 S.E.2d 587 (1962). Without a waiver by the patient or some exception to the statute, a patient’s medical records must remain confidential.

Although access to records is assured by House Bill 815 "notwithstanding the provisions of G.S. 8-53 or any other provision of law relating to the confidentiality of communications between physician and patient," an important qualification was added at the end of each section of the bill:

"Prior to releasing any information or allowing any inspections referred to in this section the patient resident or client must be advised in writing that he has the right to object in writing to such release of information or review of his records and that by an objection in writing he may prohibit the inspection or release of his records."

Thus, the bill requires that each person whose records might be inspected be given notice of the right to prevent that inspection.

The legislative history of House Bill 815 shows that this language was added in the Senate. It replaced language developed by the House Committee on Aging which simply conditioned the access to records upon a lack of objection from the patient. See, Minutes of the House Committee on Aging May 7, 1981. In imposing the additional requirement of written notice to patients of their right to object, the Senate amendment limited the effect of the bill. This notification requirement is quite similar to the consent to disclosure required under G.S. 8-53. In each case, some contact with the patient must be made before disclose of information or review of the records may occur.

The General Assembly has enacted other exceptions to the confidentiality of physician-patient communications. One statute permits the admission of evidence of child abuse, even if the evidence would normally be privileged. G.S. 8-53.1. Another statute requires doctors in certain counties to report gunshot wounds and other suspicious injuries which they have treated to the police. G.S. 90-21.20. These exceptions are part of a pattern of statutory details of treatment to various public agencies. See, e.g., Abor v. Hyland, 166 N.J. Super. 275, 399 A. 2d 993 (1979); State v. Hokman, 136 Vt. 341, 392 A. 2d 935 (1978); State v. Jacobus, 348 N.Y.S. 2d 907, 75 Misc. 2d 840 (1978). Thus State legislatures have decided to limit the scope of the privilege in the interest of furnishing vital information to public agencies; but House Bill 815 is apparently unique among these statutes in requiring that the patient be given written notice of his right to object before the exception is effective.

The question at hand must be considered in light of the foregoing background. The General Assembly has authorized representatives of the Department of Human Resources who inspect health care facilities to have access to the medical records of patients at the facilities. It is apparent that there are no time restrictions on this access since none are found in the statute and requiring written notice before each inspection would defeat the purpose of the statute. The medical records constitute a source of data useful in monitoring the facility’s compliance with administrative regulations governing the provision of care generally and the maintenance of medical records. Compliance with these administrative regulations is best monitored by random record checks. If notice to patients were required before each inspection, then these random checks would be impossible. Thus, the language and intent of the statute establish that if a patient has been notified in writing and has not objected, then for so long as his records are maintained at a health care facility the representatives of the department will have access to them. The inclusion of the provision for written notice indicates that the legislature wanted each patient to have a meaningful opportunity to preserve the confidentiality of his records.

A posted sign would not provide a meaningful opportunity to preserve confidentiality for two reasons. First, since it does not constitute a direct communication with the individual patient, it does not comport with the evident intent to convey to each patient the idea that some action by him is required to preserve the confidentiality of his records. It is unlikely that most patients will understand, or even read about, their right to object if this is only communicated during the stressful and confusing condition of admission and treatment. Second, a posted notice is also inconsistent with the long-term access to medical records which the Department of Human Resources representatives will receive unless the patient objects. Since the department’s access to the records will continue indefinitely after the patient’s discharge from the health care facility, the patient’s opportunity to consider whether he should also extend the patient’s opportunity to consider whether he should also extend past the period of treatment. To provide a meaningful opportunity for the patient to object after his treatment has ended, the notice of his right to object should be given in a form which is not limited to the corridors of the health care facility. A printed form issued to the patient on admission would be something he could read, consider, and act upon after discharge. A posted sign is only effective to give notice while the patient is in the facility. Since a posted sign does not provide meaningful notice of the right to object, measured against the patient’s circumstances and the length of time during which the department will have access to the records, we conclude that it would not be sufficient to satisfy the requirements imposed by Chapter 586 of the 1981 Session Laws.