Other Bulletins
Summer 2004
Health Law Bulletin
RECENT SJC CASE EXPANDS USE OF BISHOP/FULLER PROTOCOL TO RECORDS CONTAINING HIV TEST RESULTS
By J. Michael Scully, Esq.
In the May 2004 BR&G Health Law Bulletin (available at www.bulkley.com), we outlined the Bishop/Fuller protocol that Massachusetts courts must follow in cases where a criminal defendant seeks access to the confidential counseling records of an alleged victim. We noted that the Massachusetts Supreme Judicial Court (SJC) had formed a committee to study and suggest alternatives to the current protocol and that Sandy Dibble of BR&G had been appointed to serve on the committee. In an opinion issued on May 25, 2004 , the SJC expanded the category of records to which the protocol must be applied.
The SJC addressed in that opinion whether and how a criminal defendant may access medical records that are relevant to his defense, but protected by a statutory prohibition against releasing HIV test results in the absence of the patient’s consent. The defendant, who was charged with sexually assaulting a patient at a hospital where he worked, subpoenaed the patient’s medical records. The defendant sought the records in order to discover the nature, extent, and effect of a brain infection for which the patient was being treated, and the medication the patient was taking at the time of the alleged assault. The hospital sought an order that it need not produce the records, on the grounds that a Massachusetts statute (M.G.L. 111, § 70F) prohibits a hospital from releasing the results of an HIV test without the patient’s consent, and that the patient’s records contained information covered by the statute.
In considering whether, in light of the statute, HIV test results may be released only with the patient’s consent, the SJC described the balance that must be struck between the high degree of protection intended for certain sensitive and intensely personal records, and a criminal defendant’s constitutional right to present evidence shown to be relevant and likely to be significant to his defense. The Court determined that, in appropriate circumstances, even the strictest form of legislatively created privilege must give way – at least to some extent – to a defendant’s constitutional rights. The SJC concluded that records of HIV test results protected by c. 111, § 70F may be discovered using the Bishop/Fuller protocol. It instructed the lower court to use the protocol in considering what medical records of the patient must be disclosed to the defendant, even without the patient’s consent, in order to ensure the defendant’s right to a fair trial.
This case again highlights the need for health care providers to consider carefully their responses to requests for medical records, particularly where the requested records contain sensitive information subject to heightened privacy protections.
RECENT UNITED STATES SUPREME COURT CASE REGARDING PATIENT LAWSUITS AGAINST HMOs
By J. Michael Scully, Esq.
In a June 21, 2004 decision, the U.S. Supreme Court unanimously ruled that claims by two individuals who sued their HMOs for alleged failures to exercise ordinary care in the handling of coverage decisions in violation of a Texas state law were completely preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA). Because the damages available to claimants under ERISA are more limited than those typically available to claimants under state law, the decision is considered a victory for health plans governed by ERISA. The case, however, may energize members of Congress seeking to enact a federal patients’ bill of rights, which, among other things, could grant patients the right to recover greater damages from their health plans for improper coverage denials.
J. Michael Scully (mscully@bulkley.com) is a partner practicing in the Health Law Practice Group.
