DOES THE PHYSICIAN PATIENT PRIVILEGE PROTECT UNIDENTIFIED NONPARTY MEDICAL RECORDS?
After noting that the majority of jurisdictions that have the issue have found that once identifying information has been redacted, the physician-patient privilege no longer protects nonparty medical records from disclosure, Justice Humphrey, writing for the majority stated:
“Because there is no evidence that the nonparty patients in this case intended for any portion of these confidential communications “to be disclosed to any third persons,” M.R. Evid. 503(a)(5), their medical records must be deemed to remain privileged in their unreacted forces. See, e.g., Meier, 832 N.W.2d at 259; Roe, 912 N.E.2d at 71. To hold otherwise would erode the necessary trust between physician and patient and impede the delivery of effective physical, emotional, and mental health services—the very purpose of the privilege. See M.R. Evid. 503 & Advisers’ Note to former M.R. Evid. 503 (Feb. 2, 1976); Field & Murray, Maine Evidence § 501.1 at 206; 1 Robert P. Mosteller, McCormick on Evidence § 98 at 692. The trial court erred in ordering the production of the nonparty operative notes in the circumstances of this case, and we vacate the court’s judgment to the extent it compelled their disclosure by MCH.”
The sole dissenter, Justice Jabar, wrote
“It does not make sense to hold that HIPAA and the Maine statuteprovide less protection to a patient’s confidential record than a court created rule of evidence pertaining to the same records. In this case, I believe that the trial court took sufficient steps to protect the identity of the nonparty patients whose medical records are at issue. I would affirm the trial court’s order compelling the production of the operative notes along with the safeguards ordered by the court.”
The full case ESTATE OF CAROL A. KENNELLY v.
MID COAST HOSPITAL, 2020 ME 115 can be found here:
https://www.courts.maine.gov/courts/sjc/lawcourt/2020/20me115_re.pdf