Doctor-Patient Privilege Does Not Bar Release of Medical Records to Insurer When Patient Consents
2008-0598. Med. Mut. of Ohio v. Schlotterer, Slip Opinion No. 2009-Ohio-2496.
Cuyahoga App. No. 89388, 2008-Ohio-49. Judgment reversed, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., concurs in part and dissents in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2496.pdf 
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(June 3, 2009) In a decision announced today, the Supreme Court of Ohio held that a patient’s consent to the release of medical records is valid, and waives the physician-patient privilege, if the release is “voluntary, express and reasonably specific in identifying to whom the information is to be delivered.”
The Court’s 6-1 decision, authored by Chief Justice Thomas J. Moyer, reversed a ruling in which the 8th District Court of Appeals denied a medical insurance company’s demand for discovery of patient records in connection with a civil fraud lawsuit filed by the insurer against a Cleveland physician.
Based on a review of its billing records, Medical Mutual of Ohio suspected that Dr. William Schlotterer of Cleveland had overbilled the insurer for services he provided to patients covered by Medical Mutual health plans. Pursuant to the participation agreement it enters into with health care providers, Medical Mutual asked Schlotterer to provide it with information from the treatment records of a small group of patients. Schlotterer provided the initial set of requested records but later refused a much broader request to provide records of patients dating back several years. Medical Mutual subsequently filed a civil lawsuit asserting claims against Schlotterer for breach of contract and fraud. During pretrial proceedings, the insurer submitted a discovery request asking the court to compel Schlotterer to provide it with copies of patient records in order to determine whether he had overbilled for services to those patients. The trial court granted the requested discovery order, which included a protective requirement that certain patient identification items be obscured in the medical records provided to Medical Mutual.
Schlotterer appealed, arguing that disclosure of the requested records would violate R.C. 2317.02(B)(1), the state law defining the physician-patient privilege. On review, the 8th District Court of Appeals agreed with Schlotterer’s argument, reversed the trial court’s ruling and vacated its discovery order. Medical Mutual sought and was granted Supreme Court review of the court of appeals’ decision.
In today’s decision, the Court reversed the 8th District and reinstated the trial court discovery order compelling Schlotterer to provide Medical Mutual with the requested patient records.
Writing for the majority, Chief Justice Moyer noted that while medical records are generally privileged from disclosure under R.C. 2317.02, the statute includes a specific exception to the privilege in R.C. 2317.02(B)(1)(a)(i) “where the patient has given express consent to disclosure.”
In this case, the Chief Justice wrote, the certificates of coverage issued to each of Schlotterer’s patients who were insured by Medical Mutual affirmed that the patient consented to the release of medical information to Medical Mutual when they enrolled or signed an application for insurance, and further affirmed that the patient was consenting to the release of medical information to the insurer each time he or she presented a Medical Mutual identification card to a provider of covered health care services.
“A consent to the release of medical information is valid, and waives the physician-patient privilege, if it is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered,” wrote Chief Justice Moyer. “... The consent provisions in the certificates of coverage provided to all Medical Mutual insureds that were patients of Schlotterer meet the necessary requirements for disclosure. First, there is no contention that the releases were involuntary. Second, they qualify as express consent, given the language: ‘You consent to the release of medical information to Medical Mutual when you enroll and/or sign an Application.’ And third, the provisions are reasonably specific in identifying to whom the release is made: i.e., Medical Mutual.”
“Schlotterer argues that the release does not authorize Medical Mutual to investigate fraud; instead he asserts the statement allows for review of the medical records only before the insurer makes a coverage determination. We disagree. The second paragraph in the consent section of the certificates of coverage states that the patient again consents to release of medical information upon presenting an identification card and that Medical Mutual has the right to refuse to reimburse if the patient refuses consent. This language does not limit the release to permission to determine whether services will be reimbursed, but merely explains the consequences should a patient withdraw his or her consent. Schlotterer also points to the heading above the consent section in the certificates of coverage, Claim Review. We decline, however, to give significant weight to it. Medical Mutual’s purpose for obtaining these records falls within the category of claim review. The insurer is seeking to review prior coverage claims to investigate whether Schlotterer received proper reimbursement.”
The Court also rejected a claim by Schlotterer that discovery of the requested patient records should be barred because the trial court order would entail releasing the records to Medical Mutual’s attorneys, who fall outside the specific language of the consent. “The release to Medical Mutual in this case also permits disclosure to its attorneys who are seeking disclosure on its behalf,” wrote the Chief Justice. “Were we to find otherwise, a party that must turn to the courts to enforce a waiver of privilege would be compelled to do so on a pro se basis. A party is entitled to attorney representation in a court of law. The information will be disclosed to Medical Mutual’s attorneys only because Schlotterer refused to comply with the consent provision and provide the records directly to Medical Mutual.”
Chief Justice Moyer concluded: “Because Schlotterer’s patients that are insured by Medical Mutual validly consented to release their medical information to Medical Mutual, we hold that the consent exception to the physician-patient privilege in R.C. 2317.02(B)(1) applies. Medical Mutual is therefore entitled to discovery of the medical records in this action. We do stress, however, that Civ.R. 26(C) still applies to discovery that is excepted from privilege protection. Trial courts may use protective orders to prevent confidential information, such as that contained in the medical records at issue, from being unnecessarily revealed. Whether a protective order is necessary remains a determination within the sound discretion of the trial court.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.
Justice Paul E. Pfeifer entered a dissent characterizing the majority’s interpretation of the patients’ consent to release their records as “much too broad.” “(T)he insureds in this case did not consent to the release of their medical information for any purpose other than to determine whether their claims would be paid. Because the claims have been paid, the consent to release is no longer available to the insurance company,” wrote Justice Pfeifer.
Notwithstanding that opinion, Justice Pfeifer went on to state that in his view insurers should be able to obtain the type of patient information sought by Medical Mutual in this case in order to combat fraud, but that access to patient records for that purpose should be granted through a new, narrowly crafted exception to the physician-patient privilege suggested in an amicus curiae (friend of the court) brief filed in the case by the American and Ohio medical associations.
He wrote: “(The medical associations) argue that an exception to the physician-patient privilege should be allowed only ‘where the insurer (1) has made a prima facie showing of fraud that could not have been discovered, with the exercise of due diligence, within the two-year period after payment was made to the provider as set forth in R.C. 3901.388 [addressing recovery of insurance-company overpayments to medical professionals], and (2) has demonstrated that consent of the nonparty patients cannot be obtained.’ Adopting this exception would allow insurance companies to pursue claims against allegedly fraudulent doctors without eroding the physician-patient privilege. The result that the majority opinion reaches is laudable because its effect is to allow an insurance company to combat fraud, but the means used are too general and too likely to result in further litigation to determine the bounds of the general exception. I would remand to the trial court to apply this new exception to the physician-patient privilege.”
Contacts
Stephen F. Gladstone, 216.515.1660, for Medical Mutual of Ohio.
D. Jeffery Rengel, 419.627.0400, for Dr. William Schlotterer.