Notes from a Plaintiff’s Attorney: Using the medical record to sue a competitor for defamation

We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

I am a surgeon in a small community hospital. 

I performed an endoscopic carpal tunnel release on a patient. I have performed hundreds, if not thousands, of such procedures. I am fully experienced in performing that procedure. 

After surgery, the patient described some residual complaints. I believed these would resolve with time. Rather than wait and see me for follow-up, the patient went to my competitor for a second opinion. 

This competitor told the patient I performed the surgery ineptly. He said that he needed to re-operate. I tried to dissuade my patient but he explained he now had little faith in my opinion. The patient transferred his care to my competitor.  The second surgery was consummated.

Shortly thereafter I was served with a summons.  My former patient sued me for malpractice, claiming that he needed a second surgery because I did the first procedure negligently.

I cannot actually say what my competitor did because the operative report described a procedure involving structures nowhere near the operative field that I worked in. The competitor’s note stated that he identified 3 severed nerves, which anatomically made no sense at all. Further, these findings made no clinical sense.  I suspect the second procedure was sham surgery –  performed solely to bill the patient’s very good insurance.

This operative note served as the basis for a peer review investigation which eventually cleared me, but this was a slow and painful process.

However, as things now stand the operative report – which has been seen by everyone who cared for my former patient – states that I injured some structures and operated incompletely on others.

This is very destructive in a small community like ours because the hospital staff pretty much all know each other and many of the patients.

I feel that this report constitutes libel and I am investigating suing my competitor for defamation.

The challenge is getting the medical record introduced as evidence to support MY claim of defamation. My patient will certainly not sign a release allowing let me use the operative note to sue his “savior”. What alternatives do I have?

Not infrequently, there are exceptions allowing a medical record to be used even when the patient has not explicitly given his or her written authorization.

This may be purely statutory.  For example, a doctor who needs to defend challenged billing or is going through an audit can use billing-related records under the T(treatment) P (payment) O(operations) exception to HIPAA which allows records to be shared for those purposes (without explicit permission from the patient) as long as the doctor releases only the minimum necessary information to the minimum necessary people.

As further examples, there are public policy exceptions where the patient does not need to sign on the dotted line to release targeted protected health information. For example, a patient generally cannot assert privacy in their records against a state medical board demand to review those records. The ostensible rationale is protecting the public health trumps an individual patient’s right to privacy. There are exceptions to this exception, of course. But, the default position is that if and when the state medical board asks for records, you typically must produce unless a judge signs a court order stating otherwise.

Your case, however, requires access to the patient’s records solely for your own purposes (advancing a defamation case against your competitor) and against the patient’s wishes.

You do, however have some potential alternatives, focused on different aspects.

1. The patient

The patient is using the record in his own malpractice case against you creates a confidentiality waiver as to that case. You can use the record to defend yourself. The patient cannot simultaneously use the medical record as a sword against you and a shield against himself.

But, the patient is not waiving his privacy right as to your case against the competitor.

If you deposed your former patient to ask him about his records as a vehicle to introducing them he could seek a Protective Order.

However, the mere fact that the statement that you believe to be defamatory – that your surgery was incomplete and actually damaging – was memorialized in the operative report does not give your patient complete control over it. It is still also a statement “published” to staff that you contend was so-published by your competitor to intentionally harm you.

If it was a verbal statement – if your competitor had sauntered into the OR lounge and told all the staff there that you did lousy surgery – your former patient would have no standing to prevent that coming into evidence even it was about surgery performed on him.

The patient only has that standing if the statement about the procedure was made to him during a privileged physician-patient communication. In that setting, the patient (who holds the privilege) could refuse to let your competitor testify as to what was said.

If your competitor used a megaphone in the OR lounge to describe how inept the first surgery was, and the patient was not present, and nothing about that statement related to patient care, then using his statement is fair game, whether or not your patient consents.

If you will be using this approach and an objection is raised, you can settle the matter by bringing a motion for the judge to decide while still in the Discovery phase.  Naming the patient with an initial (“Mr. A”) in your filings and agreeing to redact his identity in all documents entered into evidence, since who he is not probative in your case, gives you an advantage in getting a favorable ruling.

2. The other doctor

You will depose your competitor as to what he said in his report. This would again be like the method above – using the report as a document that contains the claimed defamatory statement.

Again, the patient’s actual identity can be redacted.

3. You

You were investigated by the hospital’s peer review board after its review of the record, including the operative report.

This review would not have required the patient’s permission because of public policy, grounded in both statute and case law in most states, that peer review functions are to be facilitated so as to maintain professional quality standards and protect the public health.

If you have copies of the documents that the board reviewed, including the operative report, you can give those to your expert who will then testify based on those as having been used by the board in coming to its evaluation of you, an evaluation that will be in evidence in your case.

If not, you can request a copy of the file from the board and give that to your expert for the same purpose.

You would therefore not be seeking a waiver of confidentiality from your patient about their medical file – you would be waiving your own confidentiality as to the proceedings that were held about you.

Best of luck in fighting back!

[Medical Justice note. Defamation is a false statement, told to another – either in writing or in speech, which damages reputation. Opinions, as opposed to false statements, are generally a defense against defamation. An intra-operative observation would generally be construed as ‘an opinion.”

But, if the “intraoperative observation” is beyond the pale and describes the severing of structures that seem nonsensical on its face – based on the procedure that was initially performed, and the patient’s clinical course – that might rise to the level of defamation. And using the medical records to make that case seems like a novel approach to proving your point. Good luck.]