Legal Eagle Eye Newsletter for the Nursing Profession (7)9 Sep 99


   Quick Summary: Not just their medical records, even patients’ names are protected by medical confidentiality.

   The names of a healthcare facility’s patients are privileged. The legal privilege of confidentiality can be waived only by the patient.

   Even when one patient needs to identify another patient as a witness in a lawsuit, a healthcare facility has a legal duty not to disclose any patient’s privileged information.

   The other patient did not file the lawsuit and did not do anything to waive the privilege of complete medical confidentiality.

   A hospital’s internal investigative reports and witness statements of staff and patients are collected for purposes of retrospective utilization review and staff performance assessment.

   Confidentiality of peer review and utilization review materials is essential to maintaining standards and improving the quality of care provided to patients.

   The hospital’s internal investigative materials are protected by the peer-review statute.  SUPREME COURT OF MICHIGAN, 1999.


   Two cases with similar and interlocking legal issues were consolidated for decision by the Supreme Court of Michigan.

   In one case a patient sued a hospital claiming a nurse administered Compazine IV for nausea per a physician’s order. The patient claimed she told the physician and the nurse she had a prior adverse reaction to Compazine and wanted Lomotil instead.

   The patient’s lawyers attempted to force the hospital to honor a subpoena for the name of the patient’s roommate, who the lawyers claimed would corroborate the patient’s testimony.

   The Supreme Court of Michigan ruled that request was improper and ruled the hospital’s attorneys acted properly by going to court to resist the subpoena.

   The second case was against another hospital. A patient sued claiming she was beaten unconscious by another patient who entered her room to fight the patient who was her roommate. Her lawsuit alleged negligence for inadequate staffing to supervise and monitor the psychiatric patients under the hospital’s care.

   This patient’s lawyers attempted to force the hospital to divulge its internal incident and investigative reports, including the names of witnesses and their witness statements obtained by the hospital.

   The court ruled that material was protected from disclosure by the professional peer-review statutes and that the patient’s lawyers had no right to see it.

   Note that the issues covered in the court’s decision were very strictly limited. In neither case did the court pass judgment one way or the other on the underlying fundamental liability issues. That is, the court did not rule whether it is negligent to give Compazine IV to a patient who reports a prior adverse reaction, nor did the court rule whether it is negligent to provide inadequate supervision of patients on a psychiatric unit.

   The court reviewed the legal principles standing behind its decision.

   The principle of medical confidentiality exists so that patients will be candid with their healthcare providers. The principle says that no healthcare provider shall disclose any patient information acquired in attending a patient in a professional capacity. The privilege of medical confidentiality belongs to the patient alone and cannot be given up by a healthcare provider on the patient’s behalf.

   An exception exists when a patient files a lawsuit and will rely on medical testimony to prove the lawsuit. By filing a personal injury or malpractice lawsuit the patient is considered to have waived the right to medical confidentiality for any treatment which is relevant to the medical issues in the patient’s legal case.

   However, the court ruled that the names and all other information about other patients who are not involved in the patient’s legal action are still strictly protected by medical confidentiality.

   The principle of peer-review and utilization-review confidentiality is different. It exists to insure candid and conscientious evaluation of institutional practices and is essential to continuing improvement in the care and treatment of patients. Staff have to give their honest assessment and review of what they and others have done or neglected to do in adverse patient-care incidents, without fear that it will be turned around against them or other staff or the institution in malpractice litigation, the court said.

   Statements, incident reports, investigative reports, notes, records, memos, etc., generated in the peer-review or utilization-review process are protected from forced disclosure, under the peer-review or utilization-review privilege, above and beyond the fact such materials may contain names and private data about patients. Dorris v. Detroit Osteopathic Hospital Corp., 594 N.W.2d 455 (Mich., 1999).