Health Law

Are Medical Records Produced in Litigation In the Public Realm Thereafter?

By Greg Piche'

In Hageman v. Southwest Gen. Health Ctr, Slip Opinion No. 2008-Ohio-3343, (July, 2008) the Ohio Supreme Court held that an attorney who obtained medical records of an opposing party in litigation may be held liable for the subsequent disclosure of those documents outside of the litigation, when the documents had not been disclosed at a hearing. This was a divorce case in which the attorney representing Mr. Hageman's wife obtained medical records of Mr. Hageman by subpoena during a hotly disputed custody battle. The records apparently disclosed Mr. Hageman's psychological records, his bi-polar condition and homicidal feelings toward his wife. While the records were not used in the domestic case, Mrs. Hageman's attorney passed them on to a prosecutor assessing assualt charges against Mr. Hageman involving his wife. The records were not used in those proceedings either.

The majority of the Ohio Supreme Court held that the initial disclosure was appropriate because  Mr. Hageman put his mental condition in issue in his custody fight, but that the waiver was limited to those proceedings. The Court opined:

With these considerations in milnd, we hold that when the cloak of confidentiallity that applies tomedical records is wawived for the purposes of litigation, the waiver is limited to that case. An attoreny can certainly use medical recorwds obtained lawfullly throgh the discovery process for the purposes of the case at hand-e.g. submitting them toexpert witnesses for analysis or introducing them at  trial. Howerver, an attorney may be liable to an opposing party for the unauthorized disclosure of that party's medical information that was obtained through litigation.

There was a vigorous dissent: The dissent essentially indicated that a waiver for one pupose was waiver for all absent a limitation imposed by the legislature.

In my view, the issue in this case concerns the scope of Hageman's waiver of the physiican-patient privilge. The majority, without citing any law to support its position, states " [T}here is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific,limited purpose is a waiver for another puurpose." I respectfully disagree.

Full post as published by Healthcare Law Blog on September 19, 2008 (boomark / email).