Treatment records for alcohol abuse protected from discovery, even if person receiving treatment was an intoxicated anesthesiologist who caused the death of the patient

The plaintiff Administratrix of the estate of the deceased surgical patient sued, among others, the anesthesiologist, whom she alleged was intoxicated during the surgery. On the assertion that the anesthesiologist had a history of alcohol abuse, the Administratrix sought treatment records. On direct interlocutory appeal of this issue of privilege, the Superior Court ruled that the records were protected from discovery under both federal and state law. First, a denial in a pleading against the allegation that the anesthesiologist was impaired during the surgery is not “testimony” for purposes of triggering a disclosure exception under federal regulations (42 C.F.R. § 2.63). And second, Pennsylvania’s Drug and Alcohol Abuse Control Act does not contain a “good faith exception” in the relevant subsection barring disclosure absent consent (71 P.S. § 1690.108(b)). Thus, the anesthesiologist’s abuse treatment records were privileged and protected from discovery.

_{Case Law Alerts, 3rd Quarter, July 2015}

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