Attorney General's Opinion 1981-82 #190

HEALTH. VIRGINIA FREEDOM OF INFORMATION ACT AND § 8.01-413 NOT VIOLATED BY OPHTHALMOLOGISTS REPORTING CASES OF ALLEGEDLY SUBSTANDARD CARE BY OPTOMETRISTS TO BOARD OF OPTOMETRY FOR ADMINISTRATIVE ACTION. PRIOR CONSENT OF PATIENT SHOULD BE OBTAINED.

January 15, 1982

The Honorable Arthur R. Giesen, Jr.
Member, House of Delegates

81-82 190

You have asked several questions regarding a request by the Board of Optometry (the "Board") that certain ophthalmologists who reported incidents of allegedly substandard care by optometrists to the Virginia Society of Ophthalmology and Otolaryngology submit detailed accounts of those cases (including the names of optometrists involved) to the Board for possible administrative action. I shall address your questions seriatim.

You first asked whether the ophthalmologists are required to report these cases to the Board for administrative action. Given the Board's statutory responsibility for regulation of the profession of optometry and its duty to investigate allegations of substandard practice, the Board's request is not inappropriate. See §54-380, et seq., of the Code of Virginia (1950).

I know of no State law, however, imposing a requirement that the information requested by the Board be provided.

Your second question, whether voluntary compliance with the Board's request would violate any State law, also may be answered in the negative. Only three Virginia statutes appear to affect the requested disclosure of patient records the Virginia Freedom of Information Act ("Freedom of Information Act"), the Virginia Privacy Protection Act of 1976 ("Privacy Act"), and §8.01-413.

The Privacy Act and the Freedom of Information Act both apply to governmental information and consequently would not apply to records held by a private practitioner, § 8.01-413, which does govern patient access to medical records of private physicians and hospitals, contains no express prohibition against release of these records to persons other than the patient or his attorney.

Your third inquiry, whether compliance with the Board's request by an ophthalmologist without his patient's consent would violate any physician-patient confidentiality, probably should be answered affirmatively. I know of no Virginia case holding a physician liable for violation of confidentiality under circumstances such as these, but the existence of certain Virginia statutes which provide express civil immunity to physicians in other circumstances implies that liability could attach.1 Since the Board did not request the ophthalmologists to provide the information without their patient's consent, I would advise first obtaining a written authorization to release that information in order to protect the releasing physician from any possible exposure to liability for breach of the physician-patient privilege of confidentiality.

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Footnotes:

1 See, e.g. §54-317.3 which provides immunity from civil liability absent bad faith or malicious intent) to those physicians who treat other health care practitioners for certain disorders and report their patients to the appropriate licensing board. See, also, 54-276.9: 1 which similarly exempts physicians reporting aircraft pilots.