Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

_________________________

:

OPINION : No. 85-302

:

of : FEBRUARY 13, 1986

:

JOHN K. VAN DE KAMP :

Attorney General :

:

RONALD M. WEISKOFF :

Deputy Attorney General :

:

________________________________________________________________________

THE HONORABLE GRAY DAVIS, MEMBER OF THE ASSEMBLY,

has requested our opinion on the following question:

When a patient in a private nursing home dies are his or her medical

records available to private citizens who bear no legal or familial relationship to the

deceased who wish to investigate the cause of death?

CONCLUSION

The medical records of a person who dies in a private nursing home are not

available to private persons who bear no legal or familial relationship to the deceased

who wish to investigate the cause of death.

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ANALYSIS

Nursing homes in this state are required to maintain a detailed "health

record" for each patient which centralizes "all current clinical information pertaining to

the patient's stay." (22 Cal. Admin. Code, § 72543, subd. (g).)1 It goes without saying

that such information is extremely personal and is protected within one's "zone of

privacy" assured by article I, section 1, of the California Constitution. (Board of Medical

Quality v. Gherardini (1979) 93 Cal.App.3d 669, 678-679; Wood v. Superior Court

(1985) 166 Cal.App.3d 1138, 1145, 1147; Board of Medical Quality Assurance v. Hazel

Hawkins Memorial Hospital (1982) 135 Cal.App.3d 561, 565; but see id., at 566, fn. 7.)

Thus, while alive, a patient in a nursing home knows that his or her records will be kept

confidential and disclosed only to authorized persons in accordance with law. (Cf. 22

Cal. Admin. Code, §§ 72527(a)(9), 72543(b).)

We are asked whether a private group that monitors the practices of nursing

homes may have access to such patient records to investigate the cause(s) of death of

patients who have died in order to determine whether anything improper has occurred,

and, if so, to report that to the appropriate authorities.2 We are told that no one has given

approval for such undertaking. The issue thus is whether private citizens who bear no

legal or familial relation to deceased patients have a right to review their medical records.

We conclude they do not.

The California Legislature has been solicitous of protecting the privacy of

one's medical information and for controlling its dissemination, and so several statutory

enactments preserve the confidentiality of that information while a person is alive and

after he or she dies. (Cf. 53 Ops.Cal.Atty.Gen. 136, 147.) Foremost among them are (1)

the provisions of the Confidentiality of Medical Information Act (Civ. Code, pt. 2.6, § 56

et seq.) and (2) the provisions of the Evidence Code that define and effect a physician-

1

The information required to be kept includes: an admission record, a current report of

physical examination, current diagnoses, physician's orders (including drugs and treatment),

progress notes, nurse's notes and progress notes, nurse assistants' records of patient care and

treatment and observation, records of administration of drugs and medications; a record of any

restraints imposed, documentation of oxygen administration, laboratory reports of all tests

prescribed and completed, dietary records, a record of therapy treatment, and the patient's

condition and diagnosis at discharge or final disposition. (22 Cal. Admin. Code, § 72547.)

2

Nursing homes must already report all patient deaths to the Department of Health. (22 Cal.

Admin. Code, § 72549, subd. (a.).) In addition, any person may file a complaint to request an

inspection of a nursing home by the Department (Health & Saf. Code, § 1419) which must make

an on-site inspection or investigation within 10 days unless it finds that the complaint was filed

to harass the licensee or is without any reasonable basis (id., § 1420; cf. id., § 1421).

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patient privilege (Evid. Code, div. 2, ch. 4, art. 6, §§ 990-1007). We discuss each of

these in turn.

1. The Confidentiality of Medical Information Act

In 1979 the Legislature enacted the Confidentiality of Medical Information

Act to govern the release and dissemination of one's "medical information."

The term "medical information" is broadly defined as "any individually

identifiable information in possession of . . . a provider of health care regarding a

patient's medical history, mental or physical condition, or treatment" (§ 56.05, subd. (b)),

and being so would embrace the information contained in the patient records that would

be sought herein. (Cf. 22 Cal. Admin. Code, §§ 72543(g), 72547.)

Under section 56.10, subdivision (a) of the Act, a nursing home, as a

provider of health care (cf. § 56.05, subd. (d)), may not "disclose medical information

regarding a patient . . . without first obtaining an authorization. . . ." (§ 56.10(a).)3 Since

"patient" is defined as "any natural person, whether or not still living, who received

health care services from a provider . . . and to whom medical information pertains"

(§ 56.05, subd. (c), its protection applies equally to the deceased as well as the living

patient.

3

The subdivision recognizes many exceptions such as the mandatory disclosure of medical

information when compelled by appropriate authority (§ 56.10, subd. (b)), and its discretionary

disclosure to certain entities (id., subd. (c)). None of these or any other exception is pertinent to

the situation presented herein. For example, no authorization is necessary for a provider of

health care to disclose medical information where the disclosure is compelled by an

administrative agency for purposes of adjudication (§ 56.10, subd. (b)(4)), or by a search warrant

lawfully issued to a government law enforcement agency (id., subd. (b)(6)). Similarly, a

provider of health care without an authorization may disclose information to a governmental

entity responsible for paying for health care services rendered to the patient to the extent

necessary to allow responsibility for payment to be determined and payment to be made.

(§ 56.10, subd. (c)(2)). With like purport, the physician-patient privilege set forth in the

Evidence Code will not protect a patient's medical records from being disclosed where a criminal

proceeding is involved (Evid. Code, § 998), where information is required to or reported to a

public employee or recorded in a public office (id., § 1006) or where a "proceeding is brought by

a public entity to determine whether a right, authority, license, or privilege . . . should be revoked

. . . ." (Id., § 1007; but see Board of Medical Quality Assurance v. Hawkins (1982) 135

Cal.App.3d 561; Pating v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 608;

Division of Medical Quality v. Gherardini (1979) 93 Cal.App.3d 669.)

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In order for the necessary authorization for a release of medical information

to be valid, it must follow the dictates of section 56.11 which prescribes its content and

form. (§ 56.11; cf. § 56.05, subd. (a).) One of the specifications set forth therein is that

an authorization be -

"(c) . . . signed and dated by one of the following

"(1) The patient . . .

"(2) The legal representative of the patient, if the patient is a minor

or an incompetent . . .

"(3) The spouse of the patient or the person financially responsible

for the patient . . . [for limited purposes].

"(4) The beneficiary or personal representative of a deceased

patient." (§ 56.11, subd. (c).)

Under the Confidentiality of Medical Information Act then, the positive consent of a

deceased's personal representative or beneficiary is a sine qua non for the release of the

deceased's medical information. (§§ 56.10, 56.11; cf. § 56.05, subd. (a).)4 Without that

consent actually in hand there can be no release of such information.

A California health facility, such as a nursing home, is obligated to assure

the confidentiality of the personal and medical records of its charges and to approve the

release of such information to individuals outside the facility only in accordance with

federal, state or local law. (Tit. 22, Cal. Admin. Code, §§ 72527(a)(9), 72543 (b).) The

Confidentiality of Medical Information Act prohibits a provider of health care, in this

case the private nursing home, from disclosing medical information regarding a patient

without the requestor first having obtained the prescribed signed authorization for that

information to be released. We are told that no one has given the persons seeking the

records herein any authorization for such disclosure. Since those persons do not fit any

of the categories which would exempt them from fulfilling the requirement that the

4

The term "personal representative" ordinarily refers either to an "executor" or to an

"administrator." (Kropp v. Sterling Sav. & Loan Assn. (1970) 9 Cal.App.3d 1033, 1042, citing

Black's Law Dict. (4th ed. 1951) at 1466; see also 24 Cal.Jur.3d, Decedent's Estates, § 82.) In

some contexts though, it can have a broader meaning and include heirs, next of kin, descendants,

assignees, grantees, receivers, and trustees in insolvency. (Ibid.) We need not decide the scope

of its meaning vis-a-vis section 56.10 because in the situation herein, no one has authorized the

release of any medical information.

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required authorization actually be obtained (see fn. 3, ante), the nursing home is bound to

refuse to release the deceased patient's records to them. In other words, the medical

records being sought would not be available to private persons who wish to investigate

the cause of the patient's death.

2. The Physician-Patient Privilege

The physician-patient privilege found in the Evidence Code gives a patient

the right to refuse to disclose, or prevent any other person from disclosing, the contents of

his "confidential communications" with a person he believed to be authorized to practice

medicine. (Evid. Code, §§ 990-994; Roberts v. Superior Court (1973) 9 Cal.3d 330, 341

("The . . . privilege is that of the patient. . .").) The privilege would attach to those patient

records maintained by a nursing home which memorialize such "confidential

communications" between patient and physician. As defined by section 992 of the

Evidence Code that would be:

". . . information, including information obtained by an examination

of the patient, transmitted between a patient and his physician in the course

of that relationship and in confidence by a means which, so far as the

patient is aware, discloses the information to no third persons other than

those who are present to further the interest of the patient in the

consultation or those to whom disclosure is reasonably necessary for the

transmission of the information or the accomplishment of the purpose for

which the physician is consulted, and includes a diagnosis made and the

advice given by the physician in the course of that relationship." (Evid.

Code, § 992.)5

5

We need not pigeon-hole the many particular types of above-described records kept by a

nursing home as part of its patient profile within this definition. Suffice it to say, since the

physician-patient privilege covers one who consults or submits to an examination by a physician

"for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his

physical or mental or emotional condition" (Evid. Code, § 991 defining "patient") and since it

covers advice given by the physician in the course of that relationship, the matters made

privileged thereby would include all of a physician's records and notes regarding a patient, all

records made by others of the physician's actions and orders and all records of treatment

rendered upon them. (Cf. Rudnick v. Superior Court (1974) 11 Cal.3d 924, 930-931, 933; Wood

v. Superior Court, supra 166 Cal.App.3d at 1147; cf. Roberts v. Superior Court (1973) 9 Cal.3d

330, 340-342; Blue Cross v. Superior Court (1976) 61 Cal.App.3d 798, 800; Carlton v. Superior

Court ((1968) 261 Cal.App.2d 282 (privilege to be liberally construed); Kramer v. Policy

Holders Life Ins. Assn. (1935) 5 Cal.App.2d 380, 385 (ditto).)

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Section 994 of the Evidence Code establishes the privileged status of such information6

thus:

"Subject to Section 912 [7] and except as otherwise provided in this

article[8], the patient, whether or not a party, has a privilege to refuse to

disclose, and to prevent another from disclosing, a confidential

communication between patient and physician if the privilege is claimed

by:

"(a) The holder of the privilege;

"(b) A person who is authorized to claim the privilege by the holder

of the privilege; or

"(c) The person who was the physician at the time of the confidential

communication, but such person may not claim the privilege if there is no

holder of the privilege in existence or if he is otherwise instructed by a

person authorized to permit disclosure."

While a patient is alive then, section 994 limits the right to claim the physician-patient

privilege to: (1) its "holder," i.e., the patient himself or his guardian or conservator;9 (2) a

6

At common law communications between physician and patient were not privileged.

(Frederick v. Federal Life Ins. Co. (1936) 13 Cal.App.2d 585, 591; Kramer v. Policy Holders

Life Ins. Assn., supra, 5 Cal.App.2d at 384.) We need not discuss herein the extent to which

their being so is now constitutionally secured. (Compare Division of Medical Quality v.

Gherardini (1979) 93 Cal.App.3d 669, 678-679 and Wood v. Superior Court ((1985) 166

Cal.App.3d 1138, 1147, with Board of Medical Quality Assurance v. Hawkins (1982) 135

Cal.App.3d 561, 566, fn. 7.)

7

Section 912 provides that the physician-patient privilege is waived when the holder, without

coercion, has disclosed or consented to disclosure of a significant part of a communication

protected by it. (Id., subd. (a).) However a disclosure in confidence of a protected

communication that is "reasonably necessary for the accomplishment of the purpose for which

the . . . physician . . . was consulted, is not a waiver of the privilege." (Id., subd. (d).)

8

Sections 996 through 1007 set forth specific situations in which the physician-patient

privilege is not available. None of them is applicable herein.

9

Section 993 defines "holder of the privilege" as follows:

"As used in this article, 'holder of the privilege' means:

"(a) The patient when he has no guardian or conservator.

"(b) A guardian or conservator of the patient when the patient has a guardian

or conservator.

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person authorized to claim the privilege by the holder; or (3) the physician who received

the confidential communication.10 (Rudnick v. Superior Court, supra, 11 Cal.3d at 929.)

In Rudnick v. Superior Court though, the court focused on the similar

phraseology contained in the definition of "confidential communication" found in section

992 ("information obtained . . . in confidence by a means which . . . discloses the

information to no third person other than those . . . to whom disclosure is reasonably

necessary for . . . the accomplishment of the purpose for which the physician was

consulted . . .") and the proviso found in section 912, subdivision (d), that the physician-

patient privilege is not waived where "disclosure [of a confidential communication] is

reasonably necessary for the accomplishment of the purpose for which the . . . physician

was consulted", and held that a third person to whom such a disclosure of confidential

information is made may claim the physician-privilege on behalf of the patient. (11

Cal.3d at 932, 933-934.) Said the court:

"We therefore hold that a disclosure in confidence by a physician,

with or without the consent of the patient, of communications protected by

the physician-patient privilege to a third person to whom disclosure is

reasonably necessary for the accomplishment of the purpose for which the

physician is consulted confers upon the third person the right to claim the

physician-patient privilege on behalf of the patient. In other words, that

third person thereby becomes '[a] person who is authorized to claim the

privilege by the holder of the privilege' within the meaning of section 994."

(11 Cal.3d at 932.)

It was held accordingly in that case that a pharmaceutical company could claim the

physician-patient privilege on behalf of patients to bar discovery of adverse drug reaction

reports that were submitted by their physicians, where the reports were submitted in

confidence by the physicians involved and the submission was reasonably necessary to

accomplish the purpose for which consultation was made. (Id., at 933-934.) (Accord,

Blue Cross v. Superior Court, supra, 61 Cal.App.3d at 801 (prepaid health plan need not

disclose claim files with patient's identities and ailments because that privileged

"(c) The personal representative of the patient if the patient is dead."

10

Indeed, unless instructed otherwise by one authorized to do so, the physician must protect a

confidential patient-physician communication and assert the privilege on behalf of the absent

patient. (Evid. Code, § 995 ("The physician . . . shall claim the privilege whenever he is present

when the communication is sought to be disclosed. . ."); Bus. & Prof. Code, § 2263 ("The

willful, unauthorized violation of professional confidence constitutes unprofessional conduct");

Roberts v. Superior Court, supra, 9 Cal.3d at 341; Marcus v. Superior Court (1971) 18

Cal.App.3d 22, 24.)

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information was imparted for the purpose of paying the doctor's fees and was therefore

reasonably necessary to achieve the purpose for which the physician was consulted).)

In Board of Medical Quality Assurance v. Gherardini, supra, 93

Cal.App.3d 669, the court, on the authority of Rudnick, held that a hospital, "a third party

custodian of privileged matter, ha[d] standing to assert the statutory privilege on behalf of

the absent nonconsenting patient." (Id., at 675; accord, Roberts v. Superior Court, supra,

9 Cal.3d at 341.) A nursing home would have the same standing to assert the privilege

on behalf of their absent nonconsenting patients. But what of that authority with respect

to those patients who have died. Is there a privilege left for the home to assert?

It is clear that when a patient dies, the physician-patient privilege continues

to exist, for a time at least with the deceased's "personal representative" the holder of the

privilege. (Evid. Code, § 993, subd. (c), fn. 9, ante; cf. fn. 4, ante.) While he or she

functions as such, a physician to whom a privileged communication was made continues

to have an obligation to claim the privilege on behalf of the deceased unless instructed

otherwise. (Evid. Code, §§ 995, 994, subd. (c).) By extension, the third party recipients

of privileged patient medical information to whom it was necessarily imparted to achieve

the purpose for which the patient had consulted the physician, would continue to have the

same obligation to claim the privilege on behalf of the deceased patient.11 Again this

category would include a nursing home which cared for and treated a patient pursuant to

physician's orders. (Board of Medical Quality Assurance v. Gherardini, supra, 93

Cal.App.3d 669; cf. Rudnick v. Superior Court, supra, 11 Cal.3d 924.)

Since "there can be no discovery of matter which is privileged" (Rudnick v.

Superior Court, supra, 11 Cal.3d at 929), this much then is certain: to the extent that the

medical records sought by the private parties herein involve "confidential

communications" between the deceased and his or her physician(s), they could not be

obtained from a nursing home in face of opposition by the deceased's personal

representative. A posthumous privilege protecting them would still exist and if its new

holder "does not consent by word or deed to . . . disclosure [it is] not waived. . . ." (Id., at

11

Needless to say the key actor vis-a-vis the posthumous privilege is the personal

representative for only he or she may waive it. The Evidence Code provides that the physician

must claim the privilege unless the personal representative instructs otherwise (Evid. Code,

§§ 995, 993(c); see fn. 10, ante) and for that protection to be meaningful, those third parties to

whom a physician disclosed "confidential communications" as a necessity would also be

required to exercise their derivative right and claim the privilege unless so instructed. (Cf.

Rudnick v. Superior Court, supra, 11 Cal.3d at 931 & 931, fn. 2, quoting official comment to

§ 912(d) by the Senate Committee on Judiciary; Roberts v. Superior Court, supra, 9 Cal.3d at

341.)

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932-933.) Again, we are told that no one has consented to the private group's obtaining

the deceased patient's records. While the physician-patient privilege is still viable,12 it too

would prevent them from doing so.

We therefore conclude that the medical records of a person who dies in a

private nursing home are not available to private persons who bear no legal or familial

relationship to the deceased who wish to investigate the cause of death.

*****

12

After an estate has been distributed and the personal representative discharged there no

longer would be a "holder" to claim and force claim of the privilege. (§ 994, and see Witkin,

California Evidence, § 849 (2d ed. 1966) at 789, citing Law Rev. Comm. Comment to Evid.

Code, § 993; but see 6 Cal. Law Revision Comm's Rep. 408-410 (1964).)

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