Health Care Lawyers & Attorneys : Schottenstein Zox & Dunn Law Firm : Strategic Planning, Managed Care, Insurance : Columbus, Cleveland, Cincinnati, Central Ohio

The U.S. Department of Health and Human Services, Office for Civil Rights, recently released guides to providers and patients on when health care providers may communicate with a patient's family, friends, or others involved in the patient's care under the HIPAA privacy regulations.  The guides include frequently asked questions on this subject.  The provider's guide also notes that it is intended to clarify HIPAA requirements so that health care providers do not unnecessarily withhold a patient's health information from family, friends, and other health care providers.  

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Recent confirmation of the premise that labeling a document "peer review" does not automatically invoke the peer review privilege came via the Ohio 12th District Court of Appeals, which affirmed a trial court decision ordering the production of hospital EKG discrepancy reports.

Per hospital procedures, cardiologists overread emergency room physician EKG readings.  A discrepancy report was completed whenever the cardiologist's interpretation differed from the emergency room physician.  The defendants argued that the discrepancy reports were peer review documents and non-discoverable, based on Ohio Revised Code Section 2305.253, Incident or risk management report not admissible or discoverable; and Ohio Revised Code Section 2305.252, Confidentiality of proceedings and records within scope of peer review committee of health care entity.

Critical to the Court's finding that the trial court did not abuse its discretion in ordering production of the reports was evidence in the record that the reports were used for patient care.  The Court also cited a lack of evidence that the reports were actually examined by a peer review committee at the hospital.  And, the Court noted that the reports were not "incident or risk management reports" since the purpose of the forms is not to record a patient injury occurring at the hospital.

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The Fourth District Court of Appeals in Ohio recently released an opinion indicating that the trial court erred by refusing to grant a motion to quash a grand jury subpoena requesting medical records from a physician.  The grand jury had issued a subpoena ordering the physician to produce the medical records of over 50 patients.

The case is instructive regarding application of the physician-patient privilege to grand jury subpoenas in Ohio.  Under Federal privacy regulations, a covered entity may disclose protected health information without a "HIPAA-compliant" authorization in compliance with and as limited by the relevant requirements of a grand jury subpoena.  See 45 C.F.R. 164.512(f)(1)(ii)(B).  However, an Ohio court has recognized that the state law physician-patient privilege is more stringent than the Federal privacy regulations.  See Grove v. Northeast Ohio Nephrology Assoc., 2005-Ohio-6914, Paragraphs 18-23.

The Ohio Supreme Court has stated that in the absence of a prior authorization, a physician or hospital is privileged to disclose confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common law duty, or where disclosure is necessary to protect or further a countervailing interest that outweighs the patient's interest in confidentiality.  Biddle v. Warren Gen. Hosp., 1999-Ohio-115 (syllabus).

In this case, the Court found no statutory exception to the physician-patient privilege.  In addition, the Court refused to "judicially create a public policy exception to the privilege statute for grand jury subpoenas."  Physicians and hospitals should be aware of this opinion (and its analysis) when responding to grand jury subpoenas requesting medical records.

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