July 19, 2018
Societal values have long driven the principle that medical records are to remain confidential. This stems from the idea that society, as a whole, benefits when a patient feels free to discuss medical concerns with their provider, and that without confidentiality a patient might be less forthcoming and open with their medical needs. Reflecting this societal viewpoint, the laws, policies, and regulations support the need for confidentiality of medical records.
When the courts are called upon to apply medical record confidentiality laws, they occasionally revisit and comment upon the need for these laws: The intent is to encourage patients to fully disclose information for the purpose of receiving complete medical care.33 The privilege is meant to ensure appropriate care by encouraging a patient’s full disclosure of facts. 34
This promotes the likelihood that the patient receives complete medical treatment.35 Advances in technology, pharmacology, and the delivery of healthcare services overall, require continued legislation and litigation surrounding the way society enforces the principles of confidentiality balanced with a way to improve access to health care. As the population increases and the delivery of health care changes, much of the debate over how best to protect a patient’s information continues to be honed in the courtroom and through legislation.
A. Physician--Patient and other Statutory Privileges
In New Hampshire, as in most states, laws governing the confidentiality of the physicianpatient relationship are created by the legislature and are further defined and interpreted by the courts. New Hampshire’s Confidential Communications law places restrictions on access to
medical information of anyone who falls under the supervision of the physician and compares the level of protection to that of attorney and client:
The confidential relations and communications between a physician or surgeon licensed under provisions of this chapter and the patient of such physician or surgeon are placed on the same basis as those provided by law between attorney and client, and, except as otherwise provided by law, no such physician or surgeon shall be required to disclose such privileged communications. Confidential relations and communications between a patient and any person working under the supervision of a physician or surgeon that are customary and necessary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with such supervising physician or surgeon. This section shall not apply to investigations and hearings conducted by the board of medicine under RSA 329, any other statutorily created health occupational licensing or certifying board conducting licensing, certifying, or disciplinary proceedings or hearings conducted pursuant to RSA 135-C:27-54 or RSA 464-A. This section shall also not apply to the release of blood samples and the results of laboratory tests for blood alcohol content taken from a person who is under investigation for driving a motor vehicle while such person was under the influence of intoxicating liquors or controlled drugs. The use and disclosure of such information shall be limited to the official criminal proceedings.36
Adopting a public policy perspective, the courts have noted that this law “parallels the Hippocratic oath in recognizing that much of what a physician learns from his patient may be both embarrassing and of little real consequence to society.”37 This law is not absolute, however,
and there are times when the disclosure of confidential medical information is considered essential.
This strict standard of confidentiality applies to mental health practice and professionals.38 In later sections, it is revealed that mental health records, and in particular “psychotherapy notes,” are sometimes handled more stringently than medical records, particularly in light of recent regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).39 There are also statutorily mandated confidentiality requirements for chiropractors,40 sexual assault counselors and domestic violence counselors,41
and advanced registered nurse practitioners.42
Other Confidentiality Measures
Group health plans, employee benefit plans, and disability plans are required to file an acknowledgment with the New Hampshire Insurance Department that “all applicable state and federal laws to protect the confidentiality of individual medical records are followed.”43
The Patients’ Bill of Rights holds residential health care facilities to the confidentiality standard, noting that the patient “shall be ensured confidential treatment of all information contained in the patient’s personal and clinical record, including that stored in an automatic data
Medicare Plus Choice organizations that maintain medical records are required to safeguard the privacy of the information contained therein.45 Additionally, there are confidentiality requirements in federal laws that govern controlled substances, veterans’ benefits, substance abuse treatment and rehabilitation, and medical information maintained in electronic format.
B. Confidentiality Enforcement Policies and Statements
Many healthcare providers and healthcare organizations have internal policies, protocols and/or guidance concerning the handling of medical records and patient healthcare information. Sometimes these policies are made available to the patients and public upon entry into a facility while in other circumstances they are solely for internal use.
Organizations with policies in place that profess a greater level of protection than required by law often have additional and greater duties to their patients. Once the policies are created, the failure to handle patient information in accordance with the policies may result in
significant legal liability to the provider. This is particularly true if failure to adhere to set policies causes harm to the patient. Conversely, having a thorough and current set of policies regarding the handling of medical records may present compelling evidence that a healthcare provider takes seriously its obligations to handle patient records properly.
34 Nelson v. Lewis, 130 N.H. 106, 109, 534 A.2d 720, 722 (1987).
35 State v. Kupchun, 117 N.H. 412, 415, 373 A.2d 1325, 1327 (1977).
36 RSA § 329:26.
37 Nelson, 130 N.H. at 109.
38 RSA § 330-A:32.
39 45 C.F.R. §§ 160-164.
40 RSA § 316-A:27.
41 RSA § 330-C:26.
42 RSA § 326-B:35.
43 RSA § 415-A:4-a, III.
44 RSA § 151:21, X.
45 42 U.S.C. § 1395w-22(h)..