DOCTOR SUED FOR RELEASING MEDICAL RECORDS TO EMPLOYER

Louis Frank Hollander, Jr. v. Raymond Lee Nichols:

On March 20, 2009, the Alabama Supreme Court released this opinion concerning a case wherein an employee sued the authorized treating physician for breach of contract, abuse of process, and defamation. At trial, evidence was introduced that the employee injured his right knee and left ankle on August 27, 1999. On August 30, 1999, the employee was seen by Dr. Glen Sockwell for complaints of stress and shortness of breath. Dr. Sockwell provided a work release slip excusing the employee from work from August 31st to September 12th. On September 1, 1999, the employee was seen by the authorized treating physician, Dr. Lee Nichols, regarding his work related leg injuries. Dr. Nichols did not excuse the employee from work. On September 7, 1999, the employee notified the employer that he intended to make a workers’ compensation claim for the stress and shortness of breath. He was told that the claim would be denied and he would not be eligible for benefits while off work pursuant to Dr. Sockwell’s work release slip. As a result, the employee called Dr. Nichols’ office the next day and asked him to back date a work release slip. Dr. Nichols declined the request and noted the same in his records. Per its regular claim procedure, Dr. Nichols’ office forwarded a copy of the records to the employer. Based on the information contained in the records, the employee was terminated for dishonesty. The employee subsequently sued the employer for retaliatory discharge and prevailed at trial. The verdict was later overturned by the Alabama Supreme Court. The employee also filed a separate lawsuit against Dr. Nichols and his medical practice for breach of contract, abuse of process, and defamation. The employee claimed that Dr. Nichols’ account of what happened was untrue and, even it was, the records were improperly disclosed to the employer thus violating the contract of confidentiality afforded to patients. The trial court granted summary judgment in favor of the employer as to all counts. On appeal, the Alabama Supreme Court affirmed the summary judgment as to all counts except the breach of contract claim. The court noted that, while Alabama Code § 25-5-77 provides that a medical provider must provide records and opinions when requested to do so by either the employee or the employer, the request must be in writing. Since there was no evidence before the court that the request was in writing, the Court reversed the summary judgment on the breach of contract claim. Although the employee failed to allege it in this case, the Court noted that Alabama does recognize a tort cause of action for breach of the duty of confidentiality. It is quite possible that such a claim would have also survived summary judgment had it been alleged.

Practice Pointer: Employers, insurance companies, and third party administrators should make it standard operating procedure to issue written requests for records to all authorized treating physicians. On the flip side, all medical providers should insist that all requests be in writing in order to benefit from the protections afforded by Alabama Code § 25-5-77.