Australian Doctor Australia Doctor 18th August 2017 | Page 15

Smart Practice
Tech Talk
Antony Scholefield
Is it time to
tear up your
prescription pad?
Subpoena slip-up
EXPERT OPINION
The inappropriate release of a patient’s
medical record leads to a claim of negligence.
DR CRAIG LILIENTHAL
Case history
THE plaintiff in this case was a 50-year-old
woman. Her daughter had started a medical
negligence claim in relation to the management
of an orthopaedic injury. The mother was act-
ing as ‘tutor’ on behalf of her incapacitated
daughter in this case.
During the course of the daughter’s claim,
the hospital’s insurer issued a subpoena for the
GP to produce the daughter’s medical records.
The mother’s medical records were inadvert-
ently sent instead of her daughter’s.
The insurers then sent the mother’s medical
records to a psychiatrist who was providing a
report in the daughter’s case. The psychiatrist
used information from the mother’s records to
comment on aspects of the daughter’s claim.
He referenced the mother’s gynaecological and
psychiatric history, and a history of domes-
tic violence. He commented that there was a
secondary gain in the mother’s support of the
daughter’s claim.
Claim
Upon learning of this breach, the mother
started a claim against the GP and his staff,
stating they were negligent in sending her con-
fidential file to a third party without obtaining
her consent. She claimed that as a result, she
had lost confidence in the GP and his staff, suf-
fered an exacerbation of her depression, and
had difficulty coping with her daily activities.
Expert opinions
Comments from a number of experts can be
summarised as follows:
• The GP did not act appropriately as medi-
cal records are confidential and a competent
GP would not release a patient’s medical file
without specific written instructions signed
by that patient.
• The plaintiff felt violated by this intrusion of
privacy and felt a loss of control of her life.

QUESTIONS FOR OUR EXPERT
Dr Paul Nisselle is a GP in Victoria
1. Do GPs need signed consent from the patient when presented with a court-sanctioned
subpoena for the medical records?
No, GPs do not need the patient’s consent before complying with a ‘court order’. While a subpoena
may be issued by a lawyer, that lawyer is acting as an officer of the court when issuing it. You
must provide the information specified in the subpoena — but only what has been specified. The
information provided in this case fell well outside what was requested. You — and I mean you,
personally, not a member of staff – must read the subpoena carefully and comply exactly with its
terms. If you don’t understand the legalese, contact your MDO for advice.
2. What does it mean that the mother is named as the “tutor” in a claim?
If the plaintiff is not legally competent (that is, is underage or cognitively impaired), their lawyer may
seek to have a ‘tutor’ manage the litigation on their behalf. In a sense, the tutor acts as the client of
the plaintiff’s lawyer to make decisions on behalf of the plaintiff. They are called by different names in
different jurisdictions — litigation representative, litigation guardian, case guardian, guardian ad litem,
next friend, special representative and tutor. For more information from the Australian Law Reform
Commission on conducting civil litigation, see: bit.ly/2fr7zRR
3. Is it incumbent for a GP to notify a patient about a data breach, as occurred in this case?
If you fail to take steps to ‘mitigate the loss’ of the person whose privacy you have breached, and
their loss is made worse by your silence, that will significantly add to your liability and to the financial
damages awarded. You then will have two actions to defend.
• 
Requests for the production of medical
records were common in general practice.
They were always written in “legalese”.
• A busy doctor could easily misinterpret who
was the plaintiff in such a document espe-
cially as it related to this case where the
mother was named in the affidavit, albeit as
‘tutor’ for her daughter.
• 
Sending the wrong documents was clearly
an error. On discovering the breach of confi-
dentiality, the GP took appropriate action by
writing to the insurer.
• The GP was slow in writing to the hospital’s
insurer to retrieve the records and this delay
was inexcusable.
• 
The GP’s interpretation of “the plaintiff”
referred to on the subpoena was an accept-
able error and not a breach of standards.
• It was incumbent upon the GP to notify the
mother of the release of her records without
her authority.
Outcome
The GP’s MDO considered the claim to be
indefensible. The matter was settled for a mod-
erate sum with terms not to be disclosed.
The hospital’s insurer contributed to the set-
tlement on the basis that its solicitor provided
the mother’s medical records to the third party
and should have recognised the error. ●
www.australiandoctor.com.au
Dr Lilienthal is a GP and
medicolegal adviser.
THE so-called King Review of
pharmacy has generated fierce
debate among pharmacists, or at least
among their representative groups.
Most GPs will be happy to ignore
this debate. There is one suggestion,
however, that may have a big effect
on GPs — the endorsement of
paperless prescriptions.
For GPs already linked to electronic
script exchanges, it may seem like
an obvious step. For those who don’t
know what an ‘e-script exchange’ is, it
may seem a bit like sci-fi.
Currently, the paper script is
the legal version of the record. But
already some GPs and pharmacists
have signed up to one of two free
systems that generate an electronic
prescription as well.
It means all the pharmacist has to
do is scan a barcode on the paper
script supplied by the patient, and the
computer a