STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6593

July 12, 1989

PHYSICIANS AND SURGEONS:

Confidentiality of medical records of injured employee

WORKER'S DIABILITY COMPENSATION:

Access of employer to medical records of injured employee treated at medical clinic of employer

The worker's compensation or insurance representatives of an employer may have access to the medical records of an employee-patient examined and treated in the medical clinic of the employer for an injury sustained during the employment, but information secured and placed on the medical records by an attending physician or physicians which is not relevant to the claim of the employee-patient for worker's disability compensation may not be disclosed without the waiver of the employee-patient.

Honorable Mat J. Dunaskiss

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on whether an employer's worker's compensation representative and insurance representative may have unlimited access to employee-patient medical records maintained in a medical clinic owned by the employer where the employee-patients have filed claims and are seeking worker's disability compensation for the injuries. You have also asked whether the issue of patient confidentiality is governed by statute or simply self-regulated by the medical profession. Since your questions are related, they will be considered together.

The physician-patient privilege is not recognized at common law. Quarles v Sutherland, 215 Tenn 651; 389 SW2d 249, 251 (1965). The parameters of the physician-patient privilege are set forth in the Revised Judicature Act of 1961 (RJA), 1961 PA 236, MCL 600.2157; MSA 27A.2157, as follows:

The sole purpose of the statute is to enable persons to secure medical aid without betrayal of confidence, and thus it is a bar to disclosure without the patient's waiver. See Schechet v Kesten, 372 Mich 346, 351; 126 NW2d 718 (1964). The statutory physician-patient privilege belongs to the patient, and except in certain statutorily-delineated circumstances, may only be waived by the patient. Gaertner v State, 385 Mich 49; 187 NW2d 429 (1971).

The above-quoted statute creates the privilege and specifies the manner in which the privilege can be involuntarily waived by the patient. Eberle v Savon Food Stores, Inc, 30 Mich App 496, 500; 186 NW2d 837 (1971).

The two circumstances which must exist in order for the privilege to be deemed waived are: (1) the examination or treatment must be related to the alleged injury which is the subject of the claim; and (2) the patient must have called as a witness a physician who has treated him or her for the injury. Michigan courts have consistently required that both of these conditions be present in order for there to be an involuntary waiver. See Kelly v Allegan Circuit Judge, 382 Mich 425; 169 NW2d 916 (1969), Eberle v Savon Food Stores, Inc, supra, and Orlich v Buxton, 22 Mich App 96; 177 NW2d 184, lv den 384 Mich 768 (1970). First, the treatment must be related to the claim. Knowledge, if any, acquired in the course of medical treatment regarding other physical conditions or complaints is not considered "treatment for such injury" within the meaning of the RJA, Sec. 2157, and, therefore, remains subject to the physician-patient privilege. In Orlich v Buxton, supra, the defendant in a personal injury case attempted to question plaintiff's physician who had treated the plaintiff for medical conditions unrelated to the claim of injury. The defendant's purpose was to show that the plaintiff had not complained about the injury to that physician, and, by implication, did not have such an injury. The court said that such testimony was inadmissible since the plaintiff's treatment by the physician was not " 'treatment ... for such injury' " within the meaning of the statute. Id. at 100. Therefore, the physician-patient privilege was not deemed waived pursuant to the statute.

The second condition required for an involuntary waiver is that the examination or treatment must be related to an injury which is the subject of the claim. Dierickx v Cottage Hosp Corp, 152 Mich App 162, 167; 393 NW2d 564, lv den 426 Mich 868 (1986). Dierickx was a medical malpractice case arising from the birth of a child with cerebral palsy. The defendants, in an attempt to pursue a genetic causation defense theory, sought to obtain medical records regarding subsequently-born children, one of whom had a similar disorder. The treating physician suspected there was a genetic disorder, which would negate the plaintiff's claim of defendants' negligence as a cause of the disorder. Notwithstanding that the prohibition against disclosing these records would give the plaintiff a strategic advantage, the court concluded that the force of the statutory privilege of the siblings would prevail and the records would not be subject to discovery.

The Legislature may provide for waiver of the physician-patient privilege and has done so in the Worker's Disability Compensation Act of 1969, 1969 PA 317, Sec. 385, MCL 418.385; MSA 17.237(385), which provides:

In Sec. 315 of the Worker's Disability Compensation Act of 1969, MCL 418.315; MSA 17.237(315), the Legislature imposed a duty upon an employer to "furnish, or cause to be furnished" reasonable medical care to an employee injured arising out of an in the course of the employment, and has permitted the injured employee to seek treatment from a physician of his or her choice subject to review by a worker's compensation referee or magistrate.

Where the employer discharges the duty to furnish medical care to an injured employee in a medical clinic operated by the employer, the physical examinations of the employee conducted therein and the reports of the physical examinations fall within the scope of Sec. 385 and must be furnished to the employer. The medical reports must be made available timely to permit review prior to the taking of any depositions. Hahn v Sarah Coventry, Inc, 97 Mich App 389, 395; 296 NW2d 36 (1980), lv den 411 Mich 886 (1981).

You advise that your questions concern injured employees who were examined by the treating physician or physicians in the medical clinic furnished by the employer for the purpose of diagnosis and treatment. The physician-patient relationship, therefore, exists. See Rogers v Horvath, 65 Mich App 644, 647; 237 NW2d 595 (1975), lv den 396 Mich 845 (1976), Keene v Wiggins, 69 Cal App3d 308; 138 Cal Rptr 3 (1977). The injured employees should be encouraged to disclose their symptoms and conditions fully to the physician in order to receive proper treatment without fear of disclosure. Gaertner v State, supra; Hague v Williams 37 NJ 328; 181 A2d 345, 349 (1962).

Thus, it is possible that an injured employee may have revealed information of a personal nature which was not relevant to the examination and treatment of the particular injury suffered. Is such information to be made available to the employer without a waiver from the employee-patient?

The decision of the Louisiana Court of Appeals in Acosta v Cary, 365 So2d 4 (La Ct App 1978) is instructive. There, an employee who claimed workmen's compensation for an injury brought an action for invasion of privacy against a physician retained by the employer to conduct an examination because the physician gave the employer a copy of an earlier evaluation for a prior back injury. The court held that by presenting himself to the physician for examination and evaluation of the back injury, the employee consented to a disclosure of any medical circumstances relevant to his claim, including information of a prior back injury, but the waiver applied only to the extent pertinent to the employer's defense so that, for example, if the employee's claim related to a broken leg, there was no waiver of any information furnished as to gastro-intestinal upset.

The rule in Acosta makes good sense and should be applied in the absence of legislative direction to the contrary. The employer is entitled to reports of the physician examining and treating the injured employee, including all information secured by the physician which is relevant to the claim for worker's disability compensation.

It is my opinion, therefore, that the worker's compensation or insurance representatives of an employer may have access to the medical records of an employee-patient examined and treated in the medical clinic of the employer for an injury sustained during the employment, but information secured and placed on the medical records by the attending physician or physicians which is not relevant to the claim of the employee-patient for worker's disability compensation may not be disclosed without the waiver of the employee-patient.

Frank J. Kelley

Attorney General