Your Medical Records and Right to Privacy

Your medical records are an open secret.

Conversations you have with your doctor as well as your medical records are protected by what's known as the "doctor-patient" privilege. This means that, in most cases, they cannot be divulged or released to anyone without your consent. But as with most laws that protect our individual rights, there are exceptions when this information can be released without your consent and even over your objections.

For example, if your doctor treats you for a stab wound or gunshot wound, state laws require him to report the treatment, either to the police or to the state health department. Similarly, a doctor who treats a child for suspected child abuse must report his suspicions to the appropriate authorities. If your doctor treats you for one of a variety of contagious diseases, such as tuberculosis, AIDS, or measles, he may be required to report this to the state health department as well. If you tell your doctor that you plan to physically harm someone else, the laws in most states would allow the doctor to notify your intended victim. And if you sue your doctor for malpractice, your records will be used as evidence in the lawsuit.

Other than in the examples above, your medical records are closely guarded, and the details of your illnesses (both physical and mental) are known to no one but you and your doctor, right?

Wrong. In fact, dozens of people may have access to your medical records, or can easily get access to them. That's because every time you apply for insurance, or file a health insurance claim, you sign a waiver, or release, which authorizes the insurer to inspect your medical records. In addition, this release authorizes the insurer to share any information it finds in your records with other insurers all around the country. If you refuse to sign the release, the insurance company has the right to reject your application for a policy or refuse to pay your claim.

In practical terms, signing this release means that your doctor will provide your records to a company called the Medical Insurance Bureau (MIB). The MIB, located in Boston, Massachusetts, is run as a kind of cooperative by most of the nation's insurance companies, who obtain your records by showing that you've either applied for an insurance policy or made a claim on an existing one.

In fact, it's easier for an insurance company clerk to get access to the materials in the MIB computer than it is for you to get it yourself. That's because the MIB won't release the information it has about you directly to you; instead, it will only send them to a doctor you designate to receive your file.

Similarly, in nearly half the states, a patient has no legal right to see the records about him contained in his doctor's files. In these states, medical records are considered the property of the doctor, not the patient.

Even in those states that have laws which allow a patient access to his medical records, there are restrictions placed on just how much access the patient can have. In some states, you have to make a written request to the doctor; in others, hospitals must give you access to your records, but private physicians don't have to do so. And in most of these states, you still can't get access to your records if your doctor thinks it would not be in the best interests of your health to give them to you.

Once you've cleared all these hurdles, you still aren't home free. Your doctor or hospital can usually charge you a copying fee for the materials in your file, and in some states they can tack on an extra charge to cover their administrative costs in providing your records to you. When you consider that a stay of only a few days in the hospital can result in hundreds of pages of medical records, the cost to obtain copies can add up pretty quickly.

And once again, you'll find that it's often easier and less expensive for someone other than yourself to get access to these records. For example, although you will be charged for copies and administrative time, many hospitals will provide your records to a doctor who requests them without charging the doctor anything at all.

While more and more states seem to be moving toward providing patients with easier access to their own medical records, there's still a long way to go. And penalties for violating the confidentiality of these records need to be stiffened. Unfortunately, current laws still seem designed to favor the doctors and insurance companies who lobby diligently in the state legislatures for laws that protect them from liability, or at least limit their liability as much as possible without raising an outcry from the public.

You can find out what rights you have in regard to your medical records by checking your state's statutes, which you can find at most public libraries and in the library at your county courthouse, or by contacting your state's department of health. Your state representative's office is the place to contact if you are dissatisfied with current state laws on access to medical records.