MEDICAL MALPRACTICE-DISCOVERY-PHYSICIAN MEDICAL RECORDS

Ashok Padhiar, MD, appealed from an order granting motion to compel discovery.  The Superior Court reversed and remanded for further proceedings.  Dr. Padhiar operated on plaintiff patient for gangrene.  The doctor had been arrested at least 8 times for driving under the influence in Illinois, Michigan, Ohio and Pennsylvania.  Because of his addiction and subsequent consequences, at least one state revoked his medical license.  At the time, Pennsylvania had not revoked the doctor’s license.  The doctor operated without performing a physical examination.  During or after the amputation, the patient suffered a cardiac arrest and eventually died.  The estate sought records from the doctor relating to drug and alcohol treatment.  The trial court granted the motion to compel the information.  If the information sought contains confidential communications plaintiff must satisfy two requirements of the law.  At issue is the Public Health Services Act, 42 U.S.C. § 290ee-3.  Regulations provided for under the Act are found at 42 C.F.R. § 2.63(a)(3).  The court must find that good cause exists to make the records available.  That means that other ways of obtaining the information are not available or not effective and the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.  Further, the court may authorize release of records if the disclosure is in connection with  litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.  In the Gallo case, depositions had not yet taken place.  Therefore Dr. Padhiar had not had the opportunity to offer testimony.  In this case, the doctor had not waived his privilege by placing confidential communications at issue in a complaint since he did not file the complaint and rather was the defendant.  The law is litigation-specific, and the fact that the doctor allegedly waived his privilege by disclosing the contents of his treatment records to the employer health care system, the Pennsylvania Medical Licensure Board or the county court is not relevant.  Those prior disclosures have no effect on the privilege asserted by Dr. Padhiar in the Gallo litigation.  The doctor had not “opened the door” in any way.  Plaintiff mostly relied upon 71 P.S. § 1690.108(c).  However, that section does not include a good cause provision.  Accordingly, the Superior Court, in an opinion difficult to justify, held that the trial court erred in determining that the good cause exception of the federal act applies.  The records sought by Gallo are protected by the Act, without exception, subject to disclosure by Dr. Padhiar.