Health Information Management Journal, June, 2008 by Judith Mair
Abstract
When a patient sues a healthcare practitioner with regard to their care, the healthcare records are an important part of the evidence used in the case. litigation is usually heard in open court in the presence of the public and information contained within the records can be aired in that public forum. The issue of patient confidentiality and litigation arose in the case of Kadian v Richards [2004] NSWSC 382, which forms the basis for this report. the decision in Kadian preserves the right of patients to confidentiality of their medical records other than when a patient sues a practitioner for negligence in the delivery of health care; the loss of confidentiality is limited to what is necessary to enable the defendant doctor to prepare an adequate defence; and patient-doctor confidentiality with subsequent treating doctors is preserved unless it becomes inconsistent for the plaintiff patient to press on with litigation while continuing to maintain a full obligation of confidentiality with those doctors.
Key Words (MeSH): Confidentiality; Disclosure; Privacy of Patient Data; Doctor-Patient Relations; Litigation.
Introduction
All health professionals are aware of the legal and ethical responsibility of maintaining confidentiality of patient information. However, when a patient sues a healthcare practitioner with regard to their care, the healthcare records are an important part of the evidence used in the case. Litigation is usually heard in open court in the presence of the public and information contained within the records can be aired in that public forum. What happens to patient confidentiality in such cases? The issue of patient confidentiality and litigation arose in the case of Kadian v. Richards [2004] NSWSC 382, which forms the basis for this report. The facts and the law discussed in this report are found in the judgment of Campbell J.
The facts
The plaintiff, a six-year-old boy (’Ankur’) was born in 1998 with cardiac disease and a defective kidney. He sued the first defendant, Dr Bruce Richards, the paediatrician who cared for him during the first nine months of his life, claiming that the doctor’s negligence led to a delay in the diagnosis of congenital heart disease leading to the onset of pulmonary hypertension and irreversible damage. He also sued Auburn Hospital, the second defendant, where his mother received some antenatal treatment and where he was born. The parents filed separate claims for negligence causing them nervous shock, alleging the same factual basis upon which the child sued.
When the boy was nine months old, the first defendant referred him to a paediatric cardiologist, Dr Gary Sholler, who continues to be his doctor. A paediatric nephrologist, Dr Deborah Lewis, treated the plaintiff for his defective right kidney from time to time and continues to treat him