If you are a plaintiff in a medical malpractice action, you might be seeking information on the issue of whether or not the physician who treated you had a substance abuse problem that might have contributed to his or her claimed negligence. If you are a physician who is the object of a medical malpractice action, you might be looking for information on whether the patient's injury was the result of his or her own drug problem. Whatever, the reason, it is not uncommon for one or both parties to try to obtain substance abuse records.
Generally, it is more difficult to obtain the release of substance abuse records than other medical records. Federal law requires confidentiality for records containing the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with any alcoholism, drug abuse, education, training, treatment, rehabilitation, or research program if the program is either directly or indirectly federally assisted. The definition of "program" excludes hospital emergency rooms and medical surgical units. This confidentiality requirement applies to both oral and written communications. The requirement is not limited to the contents of the medical records but applies to the entire record of a substance abuse patient, not just to those portions of the record containing information relating to diagnosis or treatment for drug or alcohol abuse.
Federal regulations determine the conditions under which these records may be disclosed. Generally, the regulations prohibit the use or disclosure of substance abuse records in civil, criminal, administrative, or legislative proceedings conducted by a local, state, or federal authority.
If a program receives a request for the disclosure of records, the regulations guide the program's response. The program may not respond to the request in any manner that affirmatively reveals that an identified individual has been or is being treated for substance abuse. Although the regulations do allow the program to disclose that an identified individual is not and has never been a patient, denials are rarely provided.
Substance abuse records may be disclosed pursuant to a court order upon a showing of good cause. The court may impose safeguards against unauthorized disclosure. The procedure for a court order requires the use of a fictitious patient name to refer to the patient. The order may not disclose any patient information unless the patient is the applicant, the patient has given written consent to the disclosure, or the proceedings are sealed from the public. Generally, it is useless for a requesting attorney to insist that a program provide substance abuse records pursuant to a subpoena or a request for production of documents.
Many states impose restrictions on the release of substance abuse records that are even more stringent than the federal regulations.
Copyright 2009 LexisNexis, a division of Reed Elsevier Inc.
