Jones v. Asheville Radiological Group, P.A.

Judge Greene

concurring in part and dissenting in part.

I agree with Judge Walker that plaintiff’s claims based on the 1989 disclosure of her medical records are barred by the statute of limitations. I do not agree, however, that summary judgment for defendants was proper with respect to claims based on the 1992 disclosure of plaintiff’s mammography films.

This Court has recognized a claim of medical malpractice based on the unauthorized disclosure of confidential information, Watts v. Cumberland County Hosp. System, 75 N.C. App. 1, 9, 330 S.E.2d 242, 249 (1985), rev’d in part on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986), the basis of plaintiff’s claims in this action. See N.C.G.S. § 8-53 (1986) (“Confidential information obtained in medical records shall be furnished only on the authorization of the patient ....”). I agree with Judge Walker that plaintiff’s mammography films are protected by the physician-patient privilege, and that a patient may waive this privilege either expressly or impliedly. I disagree, however, that plaintiffs filing of a medical malpractice action against Dr. Sherman Morris (Dr. Morris), combined with plaintiff’s subsequent “conduct during the course of the [medical malpractice] action,” allowed Asheville Radiological Group, P.A. (Asheville Radiological) and Dr. Timothy Gallagher (Dr. Gallagher), neither of whom were parties to plaintiff’s medical malpractice action, to disclose plaintiff’s mammography films to Dr. Nathan Williams (Dr. Williams), who was testifying as an expert witness for Dr. Morris.

The filing of a medical malpractice suit against a physician implies a limited waiver of the physician-patient privilege to the extent that the defendant-physician may reveal the patient’s confidential information contained in the defendant-physician’s own records to third parties where reasonably necessary to defend against the suit. See, e.g., Acosta v. Richter, 671 So. 2d 149, 156 (Fla. 1996) '(“[A] defendant-physician is free'. . . to discuss his knowledge of the patient in order to properly defend himself.”); Heller v. Norcal Mut. Ins. Co., 876 P.2d 999, 1003 (Cal.) (construing statutory physician-patient privilege to allow a doctor who is “a potential litigant in a malpractice action ... to discuss with [his insurance provider] plaintiff’s medical condition”), cert. denied, 513 U.S. 1059, 130 L. Ed. 2d 602 (1994); Mutter v. Wood, 744 S.W.2d 600, 601 (Tex. 1988) (waiving privilege completely as to records of defendant-doctors); Otto v. Miami Valley Hosp. Soc’y, 266 N.E.2d 270, 272 (Ohio 1971) (“[I]n an action against a physician for malpractice the doctor may disclose communications.’’); cf. N.C.R. Professional Conduct 1.6(d)(6) (permitting lawyers to disclose a client’s confidential information “to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;... or to respond to allegations in any proceeding concerning the lawyer’s representation of the client”).

In this case, plaintiff’s medical malpractice suit against Dr. Morris constituted an implied waiver of her physician-patient privilege. Dr. Morris, as a defendant-physician in that suit, was therefore free to disclose to third parties his own records containing plaintiff’s confidential information, to the extent he reasonably believed necessary in defending against plaintiffs action. In addition, I agree with Judge Walker that plaintiff’s filing of the underlying medical malpractice action against Dr. Morris combined with her subsequent conduct during the course of the medical malpractice action impliedly waived her physician-patient privilege as to records related to plaintiffs breast cancer which were not in Dr. Morris’s possession. It is the effect of plaintiff’s waiver as to these records (i.e., plaintiff’s mammography films prepared by and in the possession of Asheville Radiological), which is at issue in this case.

The confidential nature of the physician-patient relationship extends beyond the time of the waiver by the patient, Crist v. Moffatt, 326 N.C. 326, 334, 389 S.E.2d 41, 46 (1990), and a defendant “must utilize the statutorily recognized methods of discovery enumerated in N.C.G.S. § 1A-1, Rule 26” to obtain a plaintiff’s medical information, id. at 336, 389 S.E.2d at 47; see also N.C.G.S. ch. 1A, art. 5 (1990). Requiring defendants to abide by formal discovery rules in obtaining medical records from a non-party physician, even where the patient has waived the physician-patient privilege, protects the patient from disclosure of aspects of her mental and physical health which may be irrelevant or otherwise inadmissible in court. Wenninger v. Muesing, 240 N.W.2d 333, 336-37 (Minn. 1976). It also protects the medical profession against unnecessary harassment and charges of professional misconduct. See Crist, 326 N.C. at 335, 389 S.E.2d at 47.

In this case, Asheville Radiological and Dr. Gallagher, neither of whom were defendants in the medical malpractice action, disclosed plaintiff’s mammography films to Dr. Williams. Although the films were related to plaintiff’s malpractice action, the films were not in the possession of a defendant to that action. It follows that, even after plaintiff’s waiver, the films could only be disclosed pursuant to statutorily authorized discovery procedures or plaintiff’s authorization. Plaintiff asserts that she did not authorize Asheville Radiological or Dr. Gallagher to release her films to Dr. Williams, nor did Dr. Williams obtain the films pursuant to discovery. We may assume, for the sake of argument, that once Dr. Morris had legal possession of plaintiff’s mammography films (either pursuant to court-ordered discovery, plaintiff’s delivery of the films to Dr. Morris, or plaintiff’s authorization to Asheville Radiological to release the films to him), Dr. Morris could then have provided Dr. Williams with the films as a reasonably necessary step in defending against plaintiff’s lawsuit; however, this intermediate step was not taken. Plaintiff has therefore asserted valid claims against Asheville Radiological, Dr. Gallagher, and Dr. Williams for the disclosure of her mammography films in 1992. Accordingly, I would reverse the entry of summary judgment on these claims.