MDNews - Long Island

T Y PICA LLY, W HEN A hospital or pro- vider receives HIPA A authorization and a patient waives the physician-patient confidentiality of treatment records, the records can be produced to the patient and any third parties the patient authorizes. However, providers of menta l hea lth care should be aware that in situations involving psychiatric treatment, a fur- ther inquiry should be considered as to whether the records to be disclosed could cause harm to the patient. If the provider is concerned about the impact that sharing records with others would have on the patient, the provider and/or hospital can seek a protective order from the court to limit disclosure. In Cynthia B v. New Rochelle Hospital Medical Center, 60 N.Y.2d 452 (1983), the Court of Appeals addressed situations in which a nonparty custodian of medical records may obtain a protective order prohibiting the disclosure of psychiatric records. The Court explained that the rea- son for the hesitancy behind the disclosure of psychiatric records, despite the waiver of confidentiality, was that these records were highly sensitive, and there was a con- cern that unsupervised disclosure could cause harm to the patient. Psychiatric records will often contain intimate details of past acts, hopes, fantasies, shames and doubts divulged during treatment that otherwise may not have been divulged. Therefore, providers have argued that a custodian or court should have discretion to withhold portions of records, or that adequate protective measures must be imposed in certain cases, so that only relevant material is disclosed. The Court of Appeals ruled that a bal- ancing process should be used in deciding whether to limit disclosure. Specifically, the court shall first broadly determine "whether the records are discoverable under CPLR article 31. If the records are found … to be material … and the patient … waived the privilege of confidential- ity, either expressly by authorizing the record's release or implicitly by placing his or her menta l condition in issue, a strong presumption is created in favor of … disclosure. This presumption may be rebutted [ by a record custodian] in a request for a protective order limiting discover y upon a show ing of excep- tiona l ci rcu mst a nces. [Exceptiona l circumstances may be present where] the custodian establishes that nondisclosure, in whole or in part, is reasonably neces- sary to prevent imminent and serious physical or psychological damage to the patient. … Should the custodian meet this burden, the court must then weigh the … information's importance to the pending litigation against the harm that is claimed will occur by its disclosure. [F]actors such as the imminence and seriousness of the claimed harm, the materiality of the information to the litigation, and the potential conflicts of interest which the custodian may have in objecting to disclosure [will be considered.] After weighing all the circumstances, the court [will] then decide whether [and/or to what extent] a protective order should be granted." These considerations are particularly important when a patient requests his or her own psychiatric records, given that Section 18 of the P ublic Hea lth Law genera lly gives patients the right t o e x a m i ne/ob t a i n c opie s of t hei r own records. The holding in Cynthia B. must be read in conjunction w it h P ublic Hea lt h Law Section 18(3)(d), which a llows the hea lthca re provider to deny access to a l l or a pa r t of t he information requested if the information "ca n reasonably be expected to cause substantial and identifiable harm to the subject or others which would outweigh the qua lified person's right of access to the information." Despite that admo- nition, however, case law clearly favors disclosure in most circumstances. See Ma ntica v. Depa r tment of Hea lth, 94 NY2d58 (1999); Wheeler v. Social Servs Commr, 233 AD2d 4, 12 (2d Dept. 1997). In sum, psychiatric providers should be cautious in automatic disclosures of records pursua nt to HIPA A autho- r i z a t i on s a n d m a y i n a p pr opr i a t e ci r c u m s t a nc e s c on s ider s e e k i n g a protective order where it is believed that full disclosure may cause the patient ha rm. W hile the presumption is that when a patient waives confidentia lity, the records should be released, provid- ers should still conduct a preliminar y ana lysis to ensure that highly sensitive records are eva luated before being sent to patients and third parties. ■ Pa r t n e r G re g o r y J. R a d o m i s li a n d Associate Nicole S. Barresi are attorneys at Martin Clearwater & Bell LLP, where they focus their practice on the defense of medical malpractice matters. For more information, visit mcblaw.com. But Not So Fast BY GREGORY J. RADOMISLI, ESQ. AND NICOLE S. BARRESI, ESQ. Give the People What They Want — M D N E W S . C O M /// M D N E W S L O N G I S L A N D ■ 2 0 2 2 L E G A L E A S E ❰❰❰❰❰ 2 3 SPECIAL CLINICAL SECTION: BEHAVIORAL HEALTH

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