Health Law Section
Recent Change in the Law Alters Language of Written Consent to Disclose Medical Information
By Teresa Meinders Burkett and Kathryn S. Burnett

On Nov. 1, 2007, changes to Oklahoma Statute Tit. 63 §1-502.2, the Oklahoma statute pertaining to confidential health information and written consent for its disclosure, went into effect. These changes require attorneys who ask clients to sign authorization forms to access medical records to revise the boldface language included in those forms in order to obtain such records from Oklahoma health care providers.

The statutory amendment also grants heightened protection to information that an individual has or may have a noncommunicable disease, including such common conditions as heart disease, obesity, diabetes, depression and arthritis. Importantly, unlike the provisions of the Health Insurance Portability and Accountability Act (HIPAA)1 that governs only “covered entities” defined by HIPAA, this amended Oklahoma law applies to any person or organization in the state that holds or maintains any “records of any disease” relating to any individual.

COMPARING THE ORIGINAL AND REVISED STATUTES

Originally, this statute pertained only to the confidentiality and disclosure of treatment records of communicable diseases.2 The statute required that any written consent form for the release of confidential health information include the boldface language, “The information authorized for release may include records which may indicate the presence of a communicable or venereal disease which may include, but are not limited to, diseases such as hepatitis, syphilis, gonorrhea and the human immunodeficiency virus, also known as Acquired Immune Deficiency Syndrome (AIDS).”3

The revised statute pertains not only to records of treatment for communicable diseases, but also to those of noncommunicable diseases.4 The statute now requires that any written consent form for the disclosure of any confidential health record contain the boldface language, “The information authorized for release may include records which may indicate the presence of a communicable or noncommunicable disease.” Under this statute, any written consent obtained for the disclosure of confidential health information after Nov. 1, 2007, that does not contain this statement is not valid. In most instances, this law also requires either the patient’s written consent or a court order to disclose information covered by this law.5

Most patients have some record of noncommunicable disease in their medical records, so this amendment means that few medical records may be disclosed through use of a subpoena that is not accompanied by a patient’s written consent or a court order.

WHAT THIS MEANS FOR OKLAHOMA ATTORNEYS

Oklahoma attorneys should review the forms they currently use to access clients’ and third parties’ health information to ensure that they contain the new boldface language required by the revised statute. Unlike HIPAA, “any person or organization” that has records or information that an individual has or may have any disease is governed by this Oklahoma law, including attorneys and their law firms.

Disclosure of information pursuant to a subpoena or the discovery process, which reveals that an individual has or may have a communicable or noncommunicable disease, without the individual’s written authorization or a court order could subject the disclosing party to damages for its release, including punitive damages and the individual’s attorney fees and costs associated with protecting the individual’s privacy rights under this state law.6

It is important that lawyers who receive or disclose health information about their clients or other parties to litigation be aware of these statutory amendments to limit the risk of civil liability as a result of inappropriate disclosures. They also need to update their internal forms used to obtain or share health information to comply with the new law.

1. 45 CFR Part 160 and Subparts A and E of Part 164.
2. The superceded statute, passed as amended in 2004, was originally passed in 1988 in response to concerns about disclosure of HIV/AIDS infection.
3. 63 O.S. §1-502.2 (2004).
4. The revision of this statute changed only the boldface language required for medical record disclosure. All other components of the statute, including those pertaining to inmates, persons exposed to infectious diseases and students infected with HIV/AIDS, remain unchanged.
5. Significantly, under the revised statute, a subpoena alone will generally no longer be sufficient for the disclosure of medical records.
6. 63 O.S. §1-502.2(H) (2007) provides: Any person who negligently, knowingly or intentionally discloses or fails to protect medical or epidemiological information classified as confidential pursuant to this section shall be civilly liable to the person who is the subject of the disclosure for court costs, attorney fees, exemplary damages and all actual damages, including damages for economic, bodily or psychological harm which is proximately caused by the disclosure. While this statute is limited by the prefatory language, “unless otherwise provided by law,” the scope of the waiver of any privilege protecting medical information in the course of litigation was clearly and narrowly limited by the Oklahoma Supreme Court in Holmes vs. Nightingale, 2007 OK 15, 158 P.3d 1039.

About The Authors

Teresa Meinders Burkett is a partner in the Tulsa office of Conner & Winters, LLP.  Also a registered nurse, Ms. Burkett’s law practice focuses on the representation of hospitals and other health care providers across the region.  She advises healthcare professionals and organizations with regard to issues of patient care, licensure and credentialing, employment practices, compliance, HIPAA privacy and security, fraud and abuse, and contracting. 

Kathryn S. Burnett is an associate in the Tulsa office of Conner & Winters, LLP.  Ms. Burnett practices primarily in the areas of healthcare and employment law.  She obtained her J.D. from William & Mary in 2007 and is a member of the American Health Lawyers Association.

Recent Change in the Law Alters Language of Written Consent to Disclose Medical Information Published OBJ 79 49 (January 12, 2008)