Medical Malpractice Case of the Month
September 1999

Leo Kelly Jr. brought a medical malpractice action against Dr. Brad Lerner. Upon the parties' joint consent, the claim was submitted to binding arbitration. Kelly's expert, Dr. Horst Schirmer, opined that Lerner breached the standard of care by performing on Kelly a transurethal resection of the prostate. On cross-examination, Lerner's counsel sought to impeach Schirmer by introducing a copy of a pathology report that showed that Schirmer had performed the same kind of surgery under conditions nearly identical to those that he alleged constituted a breach of care. The patient in the pathology report was William Warner.

Warner filed a complaint in the trail court, alleging that Lerner violated his rights under the Confidentiality of Medical Records Act ("Act") (codified in part as Md. Code Ann., Health Gen, 4-301 et seq.), by obtaining one of his medical records from Union Memorial Hospital ("hospital") without his consent, in a manner not in accord with the Act. The trail court dismissed the action, finding that the Act states that any provider can obtain any record of any patient if the records would assist in the defense of the lawsuit against that healthcare provider, and Warner appealed.

The Maryland Court of Special Appeals affirmed the judgment, concluding that although the Act attempted to fortify the privacy rights of patients, it lacked clarity as to the precise circumstances under which a provider's attorney could obtain medical records, thereby eviscerating the statutory goals of bolstering confidentiality and developing regulations under which the records could be disclosed without prior consent. Warner v .L Lerner, 693 A.2d 618 (Md. Ct. Spec. App. 1997) See HLD, v. 25, n. 7, at p. 61. The appeals court found that under the plain meaning of 4-305(b)(1)(iii) of the statute, as a healthcare provider, Lerner was permitted to obtain Warner's medical records without his prior authorization. Despite its dissatisfaction with the Act's provisions, the appeals court stated that it was duty-bound to interpret an unambiguous law as it was written. Therefore, finding that disclosure was proper under the statute, the appeals court reluctantly affirmed the dismissal. Warner appealed.

The Maryland Court of Appeals noted that 4-305, on which the lower courts had relied in making their finding that Lerner was permitted to obtain Warner's medical records, was a permissive disclosure provision, under which a healthcare provider in possession of the medical records is allowed, in its discretion, to disclose the records without the authorization of the patient. The high court noted that the healthcare provider in possession of Warner's medical records was Union Memorial Hospital, not Lerner. The high court observed that the lower courts overlooked the fact that by obtaining the report on his own, Lerner never allowed Union Memorial Hospital to exercise its discretion, under the statute, as to whether and how it would disclose Warner's records to Lerner's attorney. The high court stated that "[a]s a result Lerner's alleged self-help approach, the hospital never had an opportunity to" decide how or whether it would disclose the medical records.

The high court next addressed 4-309(b), which makes it a violation under the Act for a healthcare provider or any other person to obtain a medical record under false pretenses or through deceit, and provides liability for actual damages if a healthcare provider knowlingly violates any provision of the Act. The court noted that in Warner's complaint, which was dismissed by the trail court, Warner alleged that Lerner obtained the report from Union Memorial Hospital's medical records "wrongfully, willfully and in violation of the above statute." The high court found that the factual allegations in the complaint were sufficient to support Warner's charge that Lerner obtained the records knowingly under false pretenses or through deception. The high court reversed the judgment of the Court of Special Appeals and remanded the action of the trial court for further proceedings.

Warner v. Lerner, 705 A.2d 1169 (Md. Feb. 19, 1998)

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