Doctor wins patient records privacy case

Magellan disputes the finding that a psychiatrist was fired because he didn't provide patient-identifying information.

By Tanya Albert, AMNews staff. April 21, 2003.

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When a health plan asked Daniel S. Shrager, MD, for five patient records so it could perform a quality review, the Pittsburgh psychiatrist decided he'd had it with requests that invaded the physician-patient relationship.

He said he had watched health plans creep further and further into his patient records during his 30 years of practice and he believed it was time to make a point: Patient privacy needs come first.

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He embarked on what would turn into a more than two-year legal battle and is happy with the outcome of the case. In March, a Pennsylvania court ruled that the physician was wrongly terminated from the plan after he refused to provide records that included information that identified his patients.

"In my mind, I was fighting for all of psychiatry and all of medicine," said Dr. Shrager, who sued the health plan that asked for the records. "I'm stubborn. I don't quit."

The health plan, Magellan Behavioral Health, disagrees with the court's finding. Magellan attorney Michael McQuillen said Dr. Shrager had not been terminated because he refused to give the company records that included identifiable patient information. Instead, he said, Dr. Shrager was terminated after he refused to provide records that had the identifiable information redacted.

"What we're asking for is very limited information," McQuillen said. "The blinding of records has never been an issue for us. We understand the importance of that."

The March court ruling came from the Allegheny County Common Pleas Court and directly applies only to physicians in that Pennsylvania county.

But health lawyer James C. Pyles, a health privacy expert, said in a time when physicians say they are increasingly getting blanket information requests from insurers, this case is significant because a physician directly challenged the company's request for identifying information and won.

"Medical privacy is essential for the physician-patent relationship because patients won't confide in physicians if that isn't there," said Pyles, who served as an expert witness in Dr. Shrager's case. "I would urge physicians to strongly consider following Dr. Shrager's example."

Final straw

In the spring of 2000, Dr. Shrager got a call from Magellan -- which, along with Green Spring Health Services Inc., provides utilization review services for patients insured through Highmark Blue Cross and Blue Shield -- asking for the five patient records. Dr. Shrager asked company executives to put the request in writing.

Company executives did that in April 2000, sending Dr. Shrager a letter advising him that a health plan representative would review five treatment records, three open cases and two closed cases.

According to court records, Dr. Shrager voiced his patient confidentiality concerns, and the plan threatened to terminate him from the program. In early September 2000, Dr. Shrager said he started getting frantic calls from patients with letters from Highmark informing them that the company wouldn't pay for services from Dr. Shrager.

That's when Dr. Shrager asked a Pennsylvania court to intervene and allow him to continue seeing patients. The court agreed that Dr. Shrager should continue seeing patients while the physician went through the health plan's administrative review process and the common pleas court.

In April 2001, after the administrative review was complete, Dr. Shrager received a letter saying he had been terminated from the health plan. He pleaded his case before the Allegheny County court in October 2002, and in a March 2003 decision, Common Pleas Judge Joseph M. James recognized the importance of the physician-patient relationship and said Dr. Shrager's refusal to comply with a request for five complete patient records "was justified, and his termination was not warranted."

"It is apparent that public policy and the standard of care requires that a wall be erected around the confidentiality of the patient's psychiatric history," James wrote.

But James said the company's request for records with redacted information -- which the health plan asked Dr. Shrager for in a December 2000 letter -- was acceptable. "Public policy and the standard of care are consistent with this limited review," the judge wrote.

Dr. Shrager said he didn't comply with that letter because he disagreed with the health plan about who should get the patients' permission to release the records. He believed the company should approach the patients; the company contended that the physician should ask the patients' permission. The court agreed that the physician should be the one to get the patients' permission.

But the other reason Dr. Shrager gave for not complying with the December 2000 letter that would have allowed him to send blinded records was that he believed that the letter was only to appease him and that the standards wouldn't apply to other physicians. Consequently, he decided to press forward with his lawsuit to set a precedent.

"It felt to me that it was my turn up to bat," said Dr. Shrager, whose children are grown and who has a large enough practice to take the risk. "My feeling was, who else is there to do it?"

At press time, neither Dr. Shrager nor Magellan had decided whether to appeal parts of the decision.

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