We get a surprising number of calls concerning medical records, and the false information contained therein. Often it arises in the context of a patient who is prescribed pain killers. Doctors, understandably, are sensitive to over-prescribing opioids, both out of concern for the patient, and because the doctor can get in trouble for being too loose with such prescriptions.
But that concern sometimes results in the doctor being a little overzealous. The doctor is unconvinced that the patient is really in as much pain as they claim, and concludes the patient has developed an addiction. They note that conclusion in the patient’s medical records, and the patient feels they have been branded as a junkie to any and all doctors that examine their records in the future. The patient calls our office, wanting to sue for defamation, in order to get the comment removed from the record.
We have never sued on that basis, and probably never will, but keep reading, because I can offer a possible solution.
False medical records.
There are major barriers to a successful action involving medical records.
First, the patient thinks that the action will incentivize the doctor to change the record, but there are actually regulations preventing any changes. A doctor can add an amendment to the record, but the original notation must remain.
Further, there are privileges that apply, including the common interest privilege. Because of that privilege, it would not be enough to prove that the doctor’s statement was false; you’d have to show it was made with malice.
And finally, the statement is almost always an opinion. No matter how false you might deem that opinion to be, opinions are not actionable.
Examples of opinions:
The doctor wrote that based on the repeated requests for painkillers, she is of the opinion that the patient has an addiction issue. That’s an opinion.
A visiting nurse was concerned by the state of an elderly person, and added a note about elder abuse. That’s an opinion.
The doctor wrote that the patient is exhibiting aggression that he attributes to drug withdrawal symptoms. That’s an opinion.
The doctor states that he felt threatened by the patient, and advised the patient he would not longer treat him. Threats are in the eye of the beholder.
Is the statement verifiably false?
Defamation requires a verifiably false fact, and so long as the doctor limits any opinions to his own observations, that won’t be false.
Assuming the doctor did in fact examine the patient, there is no verifiably false statement in this notation:
“I observed the patient exhibit a full range of motion during my examination, with no sign of pain, indicating that the request for painkillers was not for the alleviation of pain.”
However, this statement goes too far:
“I observed the patient exhibit a full range of motion during my examination, with no sign of pain, indicating that the request for painkillers was not for the alleviation of pain. The patient has a history of doctor shopping.”
“Doctor shopping” refers to a patient who goes to multiple doctors in order to gain multiple, OVERRLAPPING prescriptions for painkillers. Doing so is illegal in California. If the patient never engaged in the practice, then that would be a verifiably false fact, and not an opinion. And if the doctor had no data from which to make that claim, that would show malice. In that narrow circumstance, you might be able to prove defamation for what the doctor wrote in the medical records.
But you must honestly and dispassionately analyze what was written in order to make this distinction between a false statement and an opinion.
Let’s make a minor change to our hypothetical:
“I observed the patient exhibit a full range of motion during my examination, with no sign of pain, indicating that the request for painkillers was not for the alleviation of pain. The patient is likely doctor shopping.”
Now we are back to an opinion. The doctor did not say the patient is doctor shopping, he merely speculated that he is likely doing so.
But you are not completely without a remedy.
While you may not be able to force a change, you can set the record straight. Health and Safety Code § 123111 provides:
(a) A patient who inspects his or her patient records pursuant to Section 123110 has the right to provide to the health care provider a written addendum with respect to any item or statement in his or her records that the patient believes to be incomplete or incorrect. The addendum shall be limited to 250 words per alleged incomplete or incorrect item in the patient’s record and shall clearly indicate in writing that the patient requests the addendum to be made a part of his or her record.
(b) The health care provider shall attach the addendum to the patient’s records and shall include that addendum if the health care provider makes a disclosure of the allegedly incomplete or incorrect portion of the patient’s records to any third party.
(c) The receipt of information in a patient’s addendum which contains defamatory or otherwise unlawful language, and the inclusion of this information in the patient’s records, in accordance with subdivision (b), shall not, in and of itself, subject the health care provider to liability in any civil, criminal, administrative, or other proceeding.
(d) Subdivision (i) of Section 123110 and Section 123120 are applicable with respect to any violation of this section by a health care provider.
