Protect “Confidential” Material-Keep It Out of the Medical Record

A recent case from the Virginia Supreme Court highlights the perils of physicians inadvertently placing confidential documents in the medical record.  A letter the defendant physician wrote to his attorney lost its attorney-client privilege protection because the physician failed to take sufficient precautions against its inadvertent disclosure.  The case is Walton v. Mid-Atlantic Spine Specialists (click Walton for copy of full opinion).

Walton is a medical malpractice case involving the alleged failure to properly treat the plaintiff’s broken wrist.  At issue in the case is the physician’s interpretation of x-rays he took of the plaintiff’s wrist.  Specifically, the physician took two sets of x-rays on different dates.  Regarding the second film, the physician wrote in the records that the overall alignment “looks good.”  However, three years later, the physician confided to his attorney in a letter that he may have been looking at the wrong x-ray when he wrote “looks good.”  Unfortunately, that letter was inadvertently turned over by the physician’s office to plaintiff’s counsel upon receipt of a records request.

Prior to its disclosure to plaintiff, the letter had been kept by the physician in a binder separate from his medical chart on the patient.  However, neither the binder nor the letter were marked “privileged and confidential.”  No review of the documents was conducted after they were copied but before they were provided to plaintiff.  Also, a third party copying company was responsible for making the copies and sending them out, and this company did not perform any review of the documents for confidential material.

Normally such a letter would be protected by the attorney-client privilege and would be neither discoverable nor admissible at trial.  The party who errantly receives such a letter has to return it and not retain any copies.  In Walton, though, the court held that the when an inadvertent disclosure is made without making a reasonable effort to prevent disclosure, that the disclosing party loses the privilege normally attached to the document.

There are lessons in this case.  As physicians, remember the following points and especially remember that they apply equally to email documents as to paper documents:

1. Documents intended to be confidential must be clearly marked.

2. Keep confidential documents separate from the medical record.

3.  If you give your staff confidential material make sure they understand it is confidential and not to
be put in the medical record or disclosed to anyone without your express permission.

4.  When in doubt, call the Trust.