June 17, 2008
Med Mal Case in St. Louis County Circuit Court Challenges Doc’s Privacy
By Kelly Wiese
A state appeals court has been asked to decide just how far privacy reaches with medical information.
A medical malpractice lawsuit is pending in St. Louis County Circuit Court, where a man alleges his doctor botched a colonoscopy at Des Peres Hospital and left him partially disabled.
As part of the discovery process, plaintiff's attorney Paul Passanante sought various records regarding Dr. Michael Impey from the state Bureau of Narcotics and Dangerous Drugs, the Missouri Physicians Health Program and the Board of Registration for the Healing Arts. He wants details such as drug test results and medical reports shared among the agencies.
Circuit Judge Richard Bresnahan granted Passanante's discovery requests, but Impey is seeking a writ of prohibition from the Missouri Court of Appeals Eastern District to overrule that decision and quash the subpoenas. Both sides have filed legal briefs.
A key claim in the underlying lawsuit is that Impey has a history of abusing and addiction to prescription drugs. The physician was disciplined by the Healing Arts board, which licenses doctors, and lost his authority to write certain prescriptions but continued to do so anyway.
The suit claims Impey was still a drug addict at the time of plaintiff John Campbell's procedure and resulting complications.
Passanante argues the medical information is relevant to the case and is not protected by doctor-patient confidentiality. For one thing, Impey testified about his actions at a medical license probation revocation hearing, which was open to the public, Passanante's brief said.
Also, according to the appeals court filing, he gave up that privacy by reaching settlement agreements with the board and the narcotics bureau, both of which are public records. Plus, he agreed to have information about his treatment shared between them and the Missouri Physicians Health Program, which helps doctors with substance abuse problems.
The attorney also argues that medical privilege does not apply to felonious conduct, and that Impey's writing prescriptions after being barred from doing so and giving false information to his own doctor to obtain drugs violated the law.
"Since when is a wrongdoer entitled to claim that the revealing the facts of his wrongdoing will do him irreparable harm?" Passanante, of Simon Passanante, wrote in his brief.
Impey's lawyers see it another way. They argue that so-called medical privilege cannot be waived by testimony not provided voluntarily. They say anything shared in the probation hearing was solely to save Impey's medical career, and should not open him up to further legal action.
They also say Campbell is trying to reach beyond the facts of the alleged malpractice.
"Plaintiffs, through their discovery efforts, have attempted to make the disciplinary actions against Dr. Impey for his improper use of narcotics the central issue in this case. It is not," said the brief filed by lead attorney Robert Rosenthal, of Brown & James. "The central issue is whether Dr. Impey breached the standard of care while performing Mr. Campbell's colonoscopy."
They also want to keep Campbell from using a transcript of the probation hearing in his medical malpractice case. Rosenthal's brief points to a section of law saying proceedings to discipline medical licenses for excessive drug use are not to be used against a doctor in any other proceeding.
Passanante counters that the probation revocation hearing was conducted under another chapter of law, as the hearing transcript states, so that restriction does not apply.
The court has not yet taken action in the case.
Originally published by Kelly Wiese.
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