A Medical Examiner Wants Information. What’s Next?

A young man is found deceased in a car in a nearby park, and there does not appear to be any foul play involved. A search of the victim’s car reveals some drug paraphernalia and an empty prescription bottle containing medicine that you prescribed. The medical examiner contacts you and requests the records of your last three visits with the patient and a list of all medications you prescribed. You are not sure if you are permitted to release the requested mental health information.

Unfortunately, there may come a time in your psychiatry practice when one of your patients becomes a medical examiner (ME) case. When this happens, you may receive a request for information from the ME regarding your recent treatment and/or any medications you may have prescribed. The request may or may not come in the form of a subpoena, and often it may come via an email or telephone call. In addition, in some jurisdictions the request may come from a coroner as opposed to an ME.

“Coroner” and “ME” are discrete titles (often used interchangeably) referring to individuals who complete somewhat similar roles, but they may have very different training and qualifications. Some jurisdictions may use a coroner system to investigate and determine a cause of death. The federal privacy laws discussed below do not distinguish between ME requests or coroner requests for information. For the purposes of this discussion, I am using the term ME.

Under most state laws, the ME, typically a physician, is charged with impartially investigating and subsequently certifying the cause or manner and circumstances of the patient’s death, that is, homicide, suicide, accident, natural, or undetermined. As such, the ME may seek information from treating physicians to prepare a record of facts surrounding the patient’s cause of death. Keep in mind that an inquiry from the ME does not necessarily mean he or she is evaluating the treatment provided.

As you know, federal and state privacy laws govern when and how protected health information (PHI) may be released absent specific patient consent, including PHI of a deceased patient. The Health Insurance Portability and Accountability Act (HIPAA) does not treat psychiatric information differently from other health information (except for heightened protection against disclosure of psychotherapy notes). As such, under HIPAA, a psychiatrist may disclose PHI to the ME to assist with identifying the deceased, determining the cause of death, and carrying out “other duties as authorized by law.” Similarly, 42 CFR Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records, permits disclosure of PHI when requested by the ME.

In addition to the federal HIPAA and Part 2 regulations, you must also determine whether your state’s privacy laws permit you to release the requested information. Many states’ privacy laws afford greater protection against disclosure than HIPAA or Part 2 protections. When there is a difference between federal and state confidentiality protections, deference should be given to the law affording greater protection against disclosure without patient consent. Please consult with your local attorney or risk management professional to determine whether you may release PHI in response to the ME’s request. ■