From the indispensable newsletter of Professor Frank L. Maraist, sage non pareil at the Paul M. Hebert Law Center, comes a pointer to a recent First Circuit Court of Appeal opinion relating to protected medical records.

Article 510 of the Louisiana Code of Evidence establishes the basic privilege which protects a “confidential communication made for the purpose of advice, diagnosis or treatment” of a patient’s “health condition between or among himself or his representative, his health care provider, or their representatives.” This privilege belongs to the patient, to exercise or to waive, as he or she sees fit. Section 510(B)(2) lists a number of exceptions to the privilege.

In Moss v. State, 2004-2160 (La. App. 1 Cir. 6/24/05), 2005 WL 1490450, Ms. Smith and Mr. Moss were both killed in a head-on collision between their respective cars. Mr. Moss’ survivors sued the Department of Public Transportation for a defective highway. The Department urged the comparative fault of the late Ms. Smith – whose estate was not a party to the lawsuit.

The autopsy report noted the presence of phenobarbital in Ms. Smith’s system at the time of her death. The Department sought permission to obtain her medical records from her widower and the executor of her estate, but Mr. Smith refused to authorize the release of the records.

The Department turned to La. R.S. 13:3715.1, which allows access to the medical records of a non-party if: (a) that party consents; or (b)the trial court issues an order “for the production and disclosure of a patient’s records…after a contradictory hearing with the patient…or, if deceased, with those persons identified in Paragraph 3 hereof [which includes the estate executor], and after a finding by the court that the release of the requested information is proper….”

I have always assumed that this contradictory hearing was basically a pro forma affair, and that the production of the records would only be improper if the party seeking them could not show a litigation-related need. The trial court would presumably fashion a protective order which would strictly limit dissemination of the information, seal the information if introduced, etc., and then everyone could go have lunch. Certainly the Department’s need in this case would appear, at first blush, to be legitimate; to support its comparative fault defense.

In Moss, the contradictory hearing was held and the trial court denied the Department’s request. The Department took a writ. The First Circuit affirmed, and held that the trial court had no choice but to deny the request.

The First Circuit found that the records at issue were privileged under Article 510 and, thus, that none of the exceptions to the privilege listed in Subsection (B)(2) applied. Although not completely clear, it appears that the Department agreed that the records were privileged under Article 510.

The court further held that the procedure detailed in La. R.S. 13:3715.1 was “not designed to circumvent the health care provider-patient privilege afforded by L.S.A.-C.E. art. 510.” The court continued: “The release of the requested information can never be ‘proper’ under LSA-R.S. 13:3715.1B(5) if, after a contradictory hearing, it is determined that a privilege exists and there is no exception to, or waiver of, that privilege.”

Thus, under Moss, the court hearing provided for in La. R.S. 13:3715.1(B)(3) and (5) simply affords an opportunity for the seeker to show that the non-party records at issue are not privileged (because, presumably, the holder of the privilege has been asked to waive it, and has refused). If the records are found to be privileged, then Moss would deny to the trial court the power under La. R.S. 13:3715 to override a refusal by the patient to authorize their release.

What if the Department had issued a subpoena for the records under La. R.S. 13:3715.1(B)(3) [although the records of a living non-party apparently cannot be subpoenaed, apparently those of a deceased non-party can be], and the subpoena recipient filed a motion to quash? Same result?