2002 No Action
2001 No Action
2000 No Action
1998 No Action
1995 No Action
July 7, 1998
TO THE HONORABLE, THE SENATE:
I am transmitting to the Secretary of State, with my signature, 98-S 2802, "An Act Relating to Health Care."
This Act prohibits, in the context of a medical liability civil action, exparte disclosures of a plaintiffs confidential health care information by health care providers other than the defendant. Such information, to the extent it is calculated to lead to the discovery of admissible evidence, may still be obtained through the applicable rules of civil procedure.
In this State, the confidentiality of health care information is the rule; the waiver allowed for those who put their health at issue in the context of a medical liability claim is the exception and, as such, must be carefully construed. The prohibition against ex parte contacts recognizes the sanctity of the physician-patient relationship and the importance of the legal privilege which that relationship enjoys. Specifically, it prohibits the exparte dissemination of irrelevant yet sensitive health care information. At the same time, the Act makes clear that all medical information that is relevant or would lead to relevant information in the pending civil action can be obtained through discovery. Given the great weight placed on patient confidentiality and the availability of relevant information through the discovery process, it is difficult to imagine why any physician would indulge in the kind of ex parte communications which the Act now prohibits. Treating physicians are not simply fact witnesses.
With this signature message, I would like to respond to some of the concerns raised by members of the defense bar. First, some assert that the Act is unfair because it prohibits the defendant's attorney from having direct contact with subsequent treating physicians while the plaintiffs attorney may have such contact. Plaintiffs attorney, however, cannot have direct contact with the defendant health care provider while defendant's attorney, of course, may have such contact. This Act levels the playing field. Moreover, the exparte communications that this Act will now prohibit are already prohibited in all other situations in which the plaintiffs medical condition is also squarely at issue - product liability suits, for example.
Second, some practitioners assert that the risk of further dissemination of the irrelevant confidential health care information garnered in the course of an exparte communication is virtually non-existent. Even assuming that to be true, once irrelevant confidential health care information has been disseminated to one person, the damage sought to be prevented by the Health Care Confidentiality Act has been done.
Third, others argue that the Act will prevent the efficient settlement of meritorious claims before a suit has been initiated. It is questionable whether exparte communications prior to the filing of a complaint are even permitted under existing law. In any event, the prohibition against exparte communications contemplated by the Act expressly applies only during the pendency of a civil medical liability action.
Fourth, some believe that prohibiting exparte contacts will increase the cost and burdens of defending a medical malpractice action by requiring a subpoena and deposition of subsequent treating providers. While this may be true, I do not believe that the increased costs will be substantial or that they will outweigh a patient's right to maintain the integrity of otherwise irrelevant health care information. Moreover, in most instances, defendants will nonetheless still need to take the deposition of a subsequent treating health care provider even after an exparte communication.
Finally, some suggest that the Act will prevent hospital risk managers and insurers from having contact with their own physicians or those with staff privileges. Certainly, the Act does not prevent hospital risk managers from exparte communications with the physician who is the target of the medical malpractice claim. To the extent that the hospital believes communication with subsequent treating physicians is necessary for disciplinary activities against the target physician, such information may be disclosed pursuant to R.I. Gen. Laws § 5-37.3-4(b)(2).
For the foregoing reasons, I sign this bill into law.