In Re Subpoena Pertaining to Nurse W., No. 634-10-05 Wncv (Toor, J., Nov. 1, 2005)

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                                     STATE OF VERMONT
                                   WASHINGTON COUNTY, SS

                                             │
                                             │       SUPERIOR COURT
In re SUBPOENA PERTAINING TO
 NURSE W.                                    │       Docket No. 634-10-05 Wncv
                                             │
                                             │


              RULING ON REQUEST FOR ENFORCEMENT OF SUBPOENA

       The State filed this action seeking enforcement of a subpoena served on Central Vermont

Medical Center (Hospital). The subpoena seeks records that include patient records within the

scope of the patient’s privilege set forth in 12 V.S.A. § 1612 (a). Oral argument was held on the

motion on October 31. The parties disagree not on the facts, but on the law.

       The State seeks the records in question as part of its investigation of a report made to the

State by the Hospital. The Hospital reported to the State that it had reason to believe that Nurse

W had diverted narcotic drugs. The State began an investigation, and sought records beyond

those initially provided by the Hospital. The Hospital offered to produce the records in redacted

form, with identifying patient information deleted. The State seeks the unredacted records. The

Hospital takes the position that although it wishes to cooperate with the State, it cannot release

the unredacted patient records without a court order. The State takes the position that the
statutory patient’s privilege is overridden by the statute requiring hospitals to report suspected

problems, and by public policy concerns.

       The patient privilege statute on which the Hospital relies reads in relevant part as follows:

         Unless the patient waives the privilege or unless the privilege is waived by an
         express provision of law, a person authorized to practice medicine, . . . shall
         not be allowed to disclose any information acquired in attending a patient in a
         professional capacity[.]

12 V.S.A. § 1612 (a).The Hospital points to the language requiring waiver by “an express

provision of law” and argues that it is not free to release the records without such a statute.

       The State argues that there is such an express waiver in the statute concerning these

investigations. The language to which the State points is the following:

         Any hospital . . . shall report to the appropriate board, along with supporting
         information and evidence, any disciplinary action taken by it or its staff . . .
         which limits or conditions the licensee’s privilege to practice or leads to
         suspension or expulsion from the institution.

3 V.S.A. § 128 (a). This requirement for “supporting information and evidence,” the State

argues, requires production of all relevant records, privileged or not. The State’s second

argument is that public policy requires the investigation to override the patient privilege.

                                    1. The Statutory Argument

       The patient privilege statute protects the privacy of medical treatment records. The

language of the statute is very explicit: without a waiver by the patient or by “an express

provision of law,” the privilege stands. The court cannot agree that the provision requiring

production of documentation to support a hospital’s report of discipline is such an “express”

provision. If the legislature wanted to say “this provision shall over-ride any patient privilege

otherwise applicable,” it could have done so, as the federal government has done. See 45 C.F.R.

§ 164.512 (d) (1) (allowing disclosure of otherwise protected medical information in “civil,



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administrative, or criminal investigations; inspections; licensure or disciplinary actions”). It did

not. Nor has any legislative history or other basis been offered on which the court can infer a

legislative intent to do such a thing when it drafted the language at issue. Without any basis for

concluding that the Legislature intended the result the State seeks, this court must apply the

literal language of the statute. Because no “express” statutory waiver exists, the court finds the

privilege is not waived by 3 V.S.A. § 128 (a).

                                  2. The Public Policy Argument

       The State goes on to argue that under Vermont law, the patient privilege may be

overridden by public policy concerns. The Vermont Supreme Court has held exactly that, in a

case addressing whether a mental health professional has a duty to warn an identifiable victim of

potential danger from the patient, even if it requires disclosure of privileged information. Peck v.

Counseling Service of Addison County, 146 Vt. 61 (1985). In that context, the Court noted that

the patient–physician privilege “is not sacrosanct and can properly be waived in the interest of

public policy under appropriate circumstances.” Id. at 67. The court concluded that “[a] mental

patient’s threat of serious harm to an identified victim is an appropriate circumstance under

which the physician-patient privilege may be waived.” Id.

       While Peck does stand for the general proposition that the privilege is waivable in the

interest of public policy, it offers little guidance to the lower courts with regard to when public

policy so demands. Here, there is clearly a public interest in investigating allegations of illegal

diversion of narcotics by a nurse. However, this is not a case like Peck in which it is the patient

whose actions (or statements) have created the need for disclosure. In that sense, Peck is similar

to the case law holding that a patient waives the privilege by putting his or her medical history at

issue in litigation. Mattison v. Poulen, 134 Vt. 158, 161 (1976). See also V.R.E. 503 (d)(3). This



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court construes Peck as holding that a patient who threatens to seriously harm a particular person

is inferred to have thereby waived the privilege.

         This case, by comparison, involves no action by the patients whose records are sought.

They have done nothing to lose the medical privacy they have a right to expect. No action by

them can be construed as a waiver. Instead, the alleged wrongdoing of their treatment provider is

what has led to the request for the records. Thus, the public policy considerations are not the

same as in Peck.1

         Although the State’s goal in this case is the protection of the public, that does not

automatically outweigh the public policy concerns recognized by the patient’s privilege. Accord,

Walker v. Firelands Community Hospital, 2004 WL 290832 ¶¶ 22-23 (Ohio Ct. App. 2004).

(rejecting argument that potential class members’ interest in being informed of class action

against hospital outweighed their privacy interest). Many other laudable goals could be cited for

disclosure of privileged patient records – to investigate substance abuse by patients, to monitor

insurance billing practices, and so on.2 In each instance, the value we as a society accord to those

other goals must be balanced against the value we accord to the privacy of our medical records.

Such “public policy” exceptions involve value judgments about our priorities as a community.

These are the kinds of policy determinations that should be made by the Legislature, not the

courts. Lowe v. Securities and Exchange Commission, 472 U.S. 181, 213 (1985) (White, J.,

concurring)(“The task of defining the objectives of public policy and weighing the relative

merits of alternative means of reaching these objectives belongs to the legislature”); Medical

Center Hospital of Vermont v. Lorrain, 165 Vt. 12, 16 (1996) (“The public policy issues

1
  Nor has the State explained why the investigation cannot be conducted with redacted records that do not disclose
the patients’ names, or why consent cannot be sought by the hospital from the patients in question.
2
 Although the court has not researched the question, there may, in fact, be specific statutes permitting disclosure of
otherwise privileged patient information in such instances.


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surrounding these circumstances are complex, and are best taken up by the Legislature . . .”).

The court declines to create a new “public policy” exception to the patient privilege statute.

                                                      3. Waiver

         The parties stipulated at oral argument that because another statutory provision requires

the hospital to allow “inspections” of its records by the State investigator, the Hospital recently

allowed the State’s investigator to look at, but not copy, certain of the disputed patient records.

See 18 V.S.A. § 4211. The State argues that this constituted a waiver of the privilege. The court

declines to so rule, because it is a privilege for the protection of the patient, not the provider.3

Accord, Stamy v. Packer, 138 F.R.D. 412, 418 (D.N.J. 1990) (“[O]nly the holder of the privilege

may waive its protection.”)(emphasis in original); Fitzgibbon v. Fitzgibbon, 484 A.2d 46, 68

(N.J. Super. Ct. Ch. Div. 1984) (privilege “may be waived only by the person to whom it

belongs.”); Mavroudis v. Superior Court, 162 Cal. Rptr. 724, 731 (Cal. Ct. App.1980) (“The

therapist has no power to waive the patient’s privilege and, in fact, is under a duty to assert it”).

The court therefore declines to hold that the privilege has been waived by partial disclosure to

the State’s investigator.

                                     4. Lack of Objection by the Hospital

         The Hospital takes the position that it cannot disclose the records without a court order,

but does not oppose the issuance of such an order. The court, however, will not issue an order

without an adequate legal basis. While parties are generally free to waive rights and to stipulate

to matters to which they might have valid legal objection, the court cannot accept the Hospital’s

lack of objection as a basis for issuing an order in this case. The interest protected by the

3
  If any disclosure by a provider constituted a waiver of the patient’s right to keep his or her medical records private,
the privilege would be toothless. Surely if a doctor handed over certain patient records to a drug company who
wanted to market a new drug to them, or a nurse sent interesting excerpts of patient files to a newspaper, that could
not mean the patient had lost the right to assert the privilege.



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privilege is one belonging to the patients, who are not parties to this action. The court cannot

ignore the statutory privilege even if the Hospital stands silent.




                                                       Order

         For the foregoing reasons, the court denies the request to enforce the subpoena by

requiring production of unredacted patient records.4 While there are good reasons to create an

exception to the patient-physician privilege in circumstances where the State is investigating

possible misconduct by health care providers, the creation of exceptions to the patient privilege

statute is a subject properly addressed by the Legislature, not the courts.



Dated at Montpelier this 1st day of November, 2005.

                                                      _____________________________
                                                      Helen M. Toor
                                                      Superior Court Judge




4
  The court presumes that the Hospital will continue to cooperate with the State by producing the records in redacted
form as it previously offered to do.


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