The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5125

May 30, 1978

PHYSICIANS & SURGEONS:

Records of patients

RECORDS & RECORDATION:

Records of patients kept by physicians and hospitals

HOSPITALS:

Records of patients kept by physicians and hospitals

DEPARTMENT OF MENTAL HEALTH:

Access of patients to own records

In the absence of an agreement to the contrary, the physician and the hospital own the records of a patient generated and maintained by them.

With the exception of a mental patient whose right of access is controlled by 1974 PA 258, Sec. 748, a patient has a right of access to and a right to receive copies of information concerning his or her diagnosis or treatment made by a physician or hospital. However, the health provider may establish and implement a policy by which patients' right of access is limited to viewing his or her records during normal business hours when it does not interfere with the normal routine of the health provider.

Pursuant to 1974 PA 258, Sec. 748, information contained in the records of a mental patient may be disclosed when, in the judgment of the person holding the record, the disclosure would not be detrimental to the recipient or others.

Honorable Barbara Rose Collins

Honorable Perry Bullard

Honorable Richard Young

State Representatives

The Capitol

Lansing, Michigan 48909

You have requested my opinion as to the rights of patients in regard to their medical records. I have restated your questions as follows:

1. Does a patient own records (such as X-rays, written diagnosis, therapy, prognosis, etc.) generated and maintained by a physician or hospital in connection with his or her medical examination and/or treatment?

2. Does a patient have a right of access to his or her medical records while they are in the possession of the patient's physician or the hospital in which the patient was treated?

3. Is Section 748 of the Mental Health Code, 1974 PA 258, Sec. 748; MCLA 330.1748; MSA 14.800(748), which denies a patient the right of access to his or her medical records constitutional?

In addressing the issue of ownership of medical records, reference must be made to McGarry v J. A. Mercier Co., 272 Mich 501; 262 NW 296 (1935). In this case, a highway construction corporation had engaged a physician to give professional care to an employee injured in the course of his employment. The physician subsequently brought suit to collect his fee. One of the defenses asserted by the corporation in refusing payment was the fact that the physician had refused to deliver to the corporation, for use by other physicians, X-ray negatives taken in the course of treating the injured employee. While the physician had been willing to allow inspection of the X-rays, he was unwilling to allow their removal from his clinic.

In holding that the physician was fully justified in refusing to surrender possession of the X-ray negatives, the court stated:

'. . . In the absence of agreement to the contrary, such negatives are the property of the physician or surgeon who has made them incident to treating a patient. It is a matter of common knowledge that X-ray negatives are practically meaningless to the ordinary layman. But their retention by the physician or surgeon constitutes an important part of his clinical record in the particular case, and in the aggregate these negatives may embody and preserve much of value incident to a physician's or surgeon's experience. They are as much a part of the history of the case as any other record made by a physician or surgeon. In a sense they differ little if at all from microscopic slides of tissue made in the course of diagnosis or treating a patient, but it would hardly be claimed that such slides were the property of the patient.

Also in the event of a malpractice suit against a physician or surgeon, the X-ray negatives which he has caused to be taken and preserved incident to treating the patient might often constitute the unimpeachable evidence which would fully justify the treatment of which the patient was complaining. In the absence of an agreement to the contrary there is every good reason for holding that X-rays are the property of the physician or surgeon rather than of the patient or party who employed such physician or surgeon, notwithstanding the cost of taking the X-ray was charged to the patient or to the one who engaged the physician or surgeon as a part of the professional service rendered.' 272 Mich at 503-504; 262 NW at 297.

Thus, McGarry, makes it clear that, in the absence of an agreement to the contrary, X-ray negatives constitute part of the patient's case record, but are the property of the physician who made them. It follows logically that the same ownership rule applies to case records obtained by a physician or hospital as a result of examination and treatment.

While the main purpose of the medical records is to document the course of a particular patient's illness and medical treatment, it must be recognized that medical records may serve many other purposes. Hospital and medical personnel are able to use medical records to evaluate, review and study patient care generally in their institutions. Further, medical records can provide clinical data for research, study and education. They also assure continuity of care should the patient to readmitted. 4 Gray, Attorney's Textbook of Medicine, Sec. 179.10, 'Purposes of the Medical Record.'

It should also be recognized that the health care provider is the owner of the personal property (paper, X-ray film, etc.) upon which the record is made. Further the health care provider determines the forms to be used in making the record and what information is to be placed in the record.

While it is clear that the actual medical record generated and maintained by a physician or hospital in connection with a patient's medical examination and/or treatment is owned by that physician or hospital, this right of ownership may not serve to deny patients' a right of access to or a right to receive copies of their medical records which are in the possession of a physician or hospital.

In Gaertner v State of Michigan, 385 Mich 49; 187 NW2d 429 (1971), the guardian of a mentally imcompetent minor sought to enjoin the state from interfering with or denying the right to examine and copy the state hospital records of her ward. There, the court held that the state hospital could not lawfully bar the legal representative of a patient from access to that patient's hospital records by contending that the physician-patient privilege, 1961 PA 236 Sec. 2157; MCLA 600.2157; MSA 27A.2157, made those records confidential. The court in Gaertner affirmed the lower court's granting of an injunction prohibiting the state and its agents from interfering with or denying the guardian the right to examine, inspect, and copy the hospital records on behalf of her ward.

It should be noted that the court in Gaertner makes clear that physicians and hospitals may protect patients and themselves by requiring the execution of a valid consent and waiver of the physician-patient privilege before exposing a patient's record.

A patient's right of access to his medical records has been considered in other jurisdictions. In Pyramid Life Insurance Co v Masonic Hospital Association of Payne County, Oklahoma, 191 F Supp 51, 54 (1961), patients through their insurer sought to examine their own records. There, the court stated that:

'The patient has a property right in the information appearing or portrayed on the records and he, or those authorized by him, including an insurance company representative armed with authorization signed by the patient, is entitled to make such inspection and/or to copy such records without resort to litigation.'

In Cannell v Medical and Surgical Clinic, 21 Ill App 3d 383, 385; 315 NE2d 278, 280 (1974), where a party who had been authorized to obtain medical records of a patient brought action against the medical clinic upon its refusal to make the records available, the court said:

'. . . It is our opinion that the 'fiducial qualities of the physician-patient relationship,' (citations omitted) require the disclosure of medical data to a patient or his agent on request, and that the patient need not 'engage in legal proceedings to obtain a loftier status' in his quest for such information.'

Further, the court in Cannell stated:

'Although information must be given, the physician's records themselves need not be turned over to the patient.' [21 Ill App 3d at 385; 315 NE2d at 280]

In so holding, the court in Cannell, supra, expressed agreement with the ruling in Emmett v Eastern Dispensary and Casualty Hospital, 130 US App DC 50, 54; 396 F2d 931, 935 (1967). There, the court stated that:

'The responsibilities of physicians and hospitals to protect their patients' medical facts from extrajudicial exposure spring from the confidential nature of the relationship. We find in the fiducial qualities of that relationship the physician's duty to reveal to the patient that which in his best interests it is important that he should know. And we would consider anomalous in this age any rule that would immunize from a similar obligation a hospital which is the repository of such knowledge.'

There is no Federal statute specifically addressing the issue of a patient's right of access to his medical records. In contrast, the General Education Provisions Act 88 Stat 571 (1974); 20 USCA 1232g, and the Fair Credit Reporting Act, 84 Stat 1131 (1970); 15 USCA 1681g, require disclosure upon request of one's education records and credit information.

Thus, the law in Michigan and other jurisdictions clearly recognizes the patient's right of access to his or her medical records. The ownership of the physical materials composing the actual records is to be distinguished from the information contained therein. While the physical record itself belongs to the health care provider, the patient is entitled to have that information made available to him for copying or inspection. It should be noted however, that the health provider may establish and implement a policy by which the patient's right of access is limited to reviewing his or her records during normal business hours and when it does not interfere with the normal routine of the health provider.

Recognizing this right of access to medical records, attention must be directed to Section 748 of the Mental Health Code, 1974 PA 258, Sec. 748; MCLA 330.1748; MSA 14.800(748) which denies a patient unlimited access to his medical records. 1974 PA 258, supra, Sec. 748(5)(b) and (6)(a) provides in pertinent part:

'(5) Information may be disclosed if the holder of the record and the recipient, his parents if he is a minor, or his legally appointed guardian consent:

b) To the recipient or any other person or agency, provided that in the judgment of the holder the disclosure would not be detrimental to the recipient or others.'

'(6) Information may be disclosed in the discretion of the holder of the record:

(a) As necessary in order for the recipient to apply for or receive benefits.'

1974 PA 258, supra, Sec. 700(e), MCLA 330.1700(e); MSA 14.800(700e) defines 'recipient' as:

'. . . a person who receives mental health services from a facility, or a person who receives mental health services from an entity other than a facility which is operated by or under contract with the department or a county community mental health program.'

Thus, the consent of the holder of mental health records is a condition precedent to the disclosure of the record to the recipient. If the holder believes that disclosure would be detrimental to the recipient or others, the record or parts of the record can be withheld.

In the Gaertner case the court quotes with approval the following:

"it is often the medical duty of a psychiatrist to withhold from patients the contents of medical records to the extent that such records contain family confidences, disclosures of past behavior or medical predictions of possible future recurrences of bizarre or disturbed behavior or other disclosures certain to upset the patient severely."

Further, the court states:

'. . . Suffice it to say that upon a proper showing courts may take appropriate action in the future to suppress such portions of mental patients' records as necessary to adequately protect those patients, otherwise the patient or his lawful representative shall have access to all of the patient's hospital records.' 385 Mich at 54; 187 NW2d at 432.

Thus, the law pertaining to the disclosure of the medical records of a mental patient recognizes a degree of professional discretion resting with the record holder.

Although dealing with public records, Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203; 166 NW2d 546 (1968) recognized that the legislature may validly restrict the right of access to records. There, the court enunciated as the fundamental rule in Michigan that citizens have a general right of free access to, and public inspection of, public records. However, where the harm to the public interest resulting from disclosure outweighs the public right, restrictions may be placed on the right of access by the legislature or by the courts.

Thus, it is my opinion that 1974 PA 258, supra, Sec. 748 of the Mental Health Code is constitutional in granting to the record holder the discretion to withhold information when in his judgment disclosure would be detrimental. This decision must not be arbitrary or capricious, however, and must be based on a medical judgment made in good faith and in the patient's best interest. Further, such medical judgment should be appropriately recorded.

Frank J. Kelley

Attorney General