Request By:
Mr. John W. Mynear
Chief of Police
Paris Police Department
605 High Street
Paris, Kentucky 40361
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
This is in answer to your letter in which you inquire whether the policy of the local hospital violates rights of the hospital patients.
The policy of the hospital is to notify your department of any patients admitted as the result of possible violations of state criminal laws. You indicated that this information usually pertained to patients admitted for gunshot wounds, drug overdoses and similar medical problems.
KRS 213.160 requires a hospital to keep records of births, deaths and sicknesses. Under KRS 213.180, the Department for Human Resources is to provide forms to hospitals which are to be filled in and returned to the Department with the information set forth in KRS 213.160. Clearly, under KRS 61.870(2), these constitute public records. Under KRS 61.872, most public records are available for inspection by any person. However, KRS 61.878 provides in part:
"(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
"(a) public records containing information of a personal nature where the public disclosures thereof would constitute a clearly unwarranted invasion of personal privacy."
Based upon the foregoing, this office feels that hospital records required to be kept by KRS 213.160 and transmitted to the Department for Human Resources under KRS 213.180 are available for inspection by an individual only upon order of a court of competent jurisdiction. Nevertheless, this information is available to you under KRS 61.878(4), because the disclosure is to the Paris Police Department, a public agency, and because said agency is serving a legitimate governmental need.
A close inspection of KRS 213.160 reveals that the information required to be recorded by the hospital is in the nature of ultimate facts. The hospital must record all births, dates of births, the names of parents, the names of deceased persons, the dates of death, the names of funeral directors removing the bodies for burial, the names of persons admitted for treatment of diseases, the names of the diseases, where the diseases were contracted, and any other particulars concerning the diseases which the physician feels is practicable. These ultimate facts are public records, and as stated previously, they may be disclosed to the Paris Police Department. However, under KRS 213.200, underlying facts related to the physician by the hospital patients in order for the physician to reach his conclusion on the recordable ultimate facts are privileged communications and may not be revealed even upon entry of a court order. In
Boyd v. Wynn, 286 Ky. 173, 150 S.W.2d 648 (1941), the Court of Appeals of Kentucky held that the communications described in KRS 213.200 were privileged but that the privilege was applicable only to those underlying facts related to the physician in determining the ultimate facts required by KRS 213.160, and further, that any communications made to the physician regarding anything other than those underlying facts protected by KRS 213.200 were not privileged communications. In Boyd, Id., the Court also said that common law did not recognize a claim of either privilege or confidential relationship between a patient and his physician. Kentucky has never modified the common law rule with respect to communications between a patient and his physician except for those covered by KRS 213.200.
Although there is no claim of privilege or confidential relationship between a patient and his physician, the patient, nevertheless, has a right to privacy by virtue of the relationship.
Wheeler v. P. Sorenson Manufacturing Co., Ky., 415 S.W.2d 582 (1967) and 20 A.L.R.3d 1103, Annotation Section 3, page 1114.
The right to privacy has been held to arise out of the right of the individual to be left alone and to be free from unwarranted interference by the public. Wheeler, Id. It is also possible that the action might arise out of a contract implied in fact, since there is no doubt but that there has been a meeting of the minds between the patient and his physician that the information related is to be kept confidential.
Rider v. Combs, Ky., 256 S.W.2d 749 (1953). However, the right of privacy is not absolute. In fact, if there exists an overriding public interest, the right must give way.
Perry v. Moskins Stores, Ky., 249 S.W.2d 812 (1952);
Courier Journal v. McDonald, Ky., 524 S.W.2d 633 (1974); Wheeler, supra; 20 A.L.R.3d 1103, Annotation Sections 6, 7 and 8, pages 118-122.
In summary, an examining physician may not reveal communications with a patient even though said communication is not privileged unless there exists an overriding public interest. If such an interest exists, the physician may reveal the communication. The same is applicable to other staff members.
KRS 213.160 requires a hospital to keep public records containing certain vital statistics. This is not to say that hospitals cannot keep other records with facts other than those required by KRS 213.160 recorded therein. If a hospital keeps such a record, there is no question but that it is the information received from the attending physician or other staff members. Of course, in no case may the physician reveal to the hospital those underlying facts protected by KRS 213.200. Nevertheless, information in the hospital records may be revealed if there is an overriding public interest.
In your letter, it is unclear whether the information the hospital is releasing to you is a collection of the ultimate facts required by KRS 213.160 or whether it is concerned with unrelated facts. If it is the former, the hospital can legally release the information without a court order because you are a police agency performing a legitimate governmental need. If it is the latter, the hospital may release the information if there is an overriding public interest. It is our opinion that when probable criminal activity is involved, there exists such an overriding public interest.
In conclusion, either the hospital or a member of its staff is authorized to reveal to your office information concerning the ultimate facts required to be given the Department for Human Resources by KRS 213.160. If the information is not related to that set forth in KRS 213.160, then either the hospital or a staff member may reveal the information to your office if there exists an overriding public interest. It is our opinion that there is without question an overriding public interest existing when there is a probability of criminal activity. On the other hand, underlying facts protected by KRS 213.200 cannot be revealed by the physicians to the hospital, any other agency, or any person, without authorization by the patient. The hospital should not have this information in any of its files.
In reaching the above conclusion, we assume that the information revealed is concerned with the case history of the patient. If the information is not case history, but is instead no more than the fact that an illegal event took place, then there does not even exist a right to privacy and the information may be revealed in absence of an overriding public interest.