PHYSICIANS. RECORDS. PATIENTS DO NOT OWN THEIR MEDICAL RECORDS.

November 19, 1979

The Honorable Wiley F. Mitchell, Jr.
Member Senate of Virginia

79-80 270

You have inquired about a patient's right to review medical records in the possession of the Alexandria Health Department^[1] and about his right to have other parties review them.

The prevailing view in American jurisdictions including this Commonwealth, is that a patient does not own his medical records absent a statute to the contrary. Instead, medical records are ordinarily the property of the physician or the hospital that possesses them. Moreover, the Fourteenth Amendment to the United States Constitution does not grant ^[2] patient any property interest in his medical records if state law does not create one. Gotkin v. Miller, 379 F.Supp. 859 (E.D.N.Y. 1974); aff'd, 514 F.2d 125 (2d Cir., 1975). Thus, if a patient in Virginia can compel release of his record, that authority must derive from a State statute.

Three Virginia statutes principally affect the release of patient records: §2.1-382(A)(3)(a) of the Privacy Protection Act; §2.1-342(b)(3) of the Virginia Freedom of Information Act (the "Act"); and §8.01-413. The provision of the Privacy Protection Act merely refers to the more specific language of §2.1-342(b)(3) of the Act. Section §2.1-342(b)(3) exempts medical records from the public disclosure requirements of the Act.^[3] Exemptions from that Act are not prohibitive in nature; in other words, a public body may release exempted material if it desires. See Report of the Attorney General (1977-1978) at 489. Consequently, nothing in the Act prohibits the release of medical records to someone other than the patient although there would be a breach of confidence if the patient did not consent.

In any event, the language exempting the medical records from the disclosure requirements of the Act has the effect of conferring upon a patient a statutory right to review personally records in the possession of a "public body" like a local health department or to have a physician of his choice review them. If, however, those records are mental records in which the treating physician has written tnat a personal review of the records would be injurious to the patient's physical or mental health or well-being, then only a physician of the patient's choice may review then. In my judgment, this provision about mental records does not affect the patient's right to compel a departnent to release the records to a physician of the patient's choice.

Section 8.01-413(B) also plays a role in determining whether a department must release records.^[4] Under this provision of law, copies of hospital or a physician's records shall be furnished"to the patient or his attorney. In cases where the treating physician has written in those records that release to the patient would be injurious to the patient, the records must none the less be released to the patient's attorney."[5]

The principal question about §8.01-413(B) is whether it controls a local health department which is operated by the Commonwealth. Sovereigns are ordinarily not subject to their own laws. See Opinion to the Honorable Robert Carter Chairnan, Virginia Health Services Cost Review Commission dated February 8, 1979 [and the cases cited therein] (copy enclosed). Title 8.01 is, however, generally applicabIe to the Commonwealth insofar as it prescribes procedure because it establishes the various mechanisms for the resolution of disputes by the Commonwealth is such a procedural mechanism.

Having concluded that §8.01-413(B) does appIy to state entities, I must also conclude that it grants to a patient the right to require a local health departnent to release his records to his attorney even though the records might contain the specified statement from the treating physician that inspection of the records by the patient might be Injurious to that patient. Moreover, the pendency of litigation is not a condition precedent to the patient's exercise of his rights under this provision of law.

In summary, §§2.1-342(b)(3) and 8.01-413(B) confer certain rights upon patients. These statutes allow a patient to compel release of his medical records to himself, to a physician of his choice, or to his attorney. If the records contain the specified statement from the treating physician that personal inspection would be injurious,⁶ then the patient can compel the release to either his physician or his attorney. If no such statement is in the records, then no statute prohibits the release of the records to anyone whom the patient may designate. While the department may in theory deny access to persons other than the patient, his attorney, or his physician, I would not advise restricting such access unless the patient's demands were harassing or unreasonable.⁷

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Footnotes:

1. The Alexandria Health Departnent is operated under contract by the State Health Department pursuant to §32.1-31 of the Code of Virginia (1950), as amended, and therefore is a state entity.

2. See Report of the Attorney General (1939-1940) at 220; Opinion to the Honorable W. L. Lemon, dated December 27, 1978 (copy enclosed); Pozzar, Legal Aspects of Health Care Administration (1979) at 112; Warren, Problems in Hospital Law (3d ed. 1978) at 169-170.

3. ln pertinent part, § 2.1-342(b)(3) states: Such records can be personally reviewed by the subject person or a physician of the subject person's choice; provided, however, that the subject person's mental records may not be personally reviewed by such person when the subject person's treating physician has made a part of such person's records a written statement that in his opinion a review of such records by the subject person would be injurious to the subject person's physical or mental health or well-being."

4. Section 8.01-413(B) provides:

"Copies of hospital or physician's records or papers shall be furnished at a reasonable charge and within fifteen days of such request to the patient or his attorney upon such patient's or attorney's written request; provided, however, that copies of a patient's records shall not be furnished to such patient where the patient's treating physician has made a part of the patient's records a written statement that in his opinion the furnishing to or review by the patient of such records would be injurious to the patient's health or well-being but in any such case such records shall he furnished to the patient's attorney within fifteen days of the date of such request. A reasonable charge may be made for such copies."

5. See report of the Attorney General (1977-1978) at 332. (Opinion construes §8-277.1(B) which was recodified as §8.01-413(B).)

6. Note that §2.1-342(b)(3)'s specified statement refers only to "mental records" while §8.01-413(8)'s statement refers to a "patient's records" which apparently encompasses both medical and mental records.

[7.] Because §8.01-413(B) was enacted into law after §2.1-342(b)(3), I conclude, as a practical matter, that if any type of medical record in the possess ion of a "public body" contains such a statement restricting release, it is prohibitive insofar as release to the patient is concerned. When the records are to be released to any party other than the patient, a written and notarized authorization from the patient is advisable in my opinion. Certainly, some kind of prior consent from the patient to release the records to a third party, even his attorney or a physician of his choice, is essential if a breach of the confidential nature of the records is to be precluded.