Request By:
Mr. Lyle G. Robey
Stoll, Keenon & Park
1000 First Security Plaza
Lexington, Kentucky 40507-1380
Opinion
Opinion By: Steven L. Beshear, Attorney, General; BY: Carl Miller, Assistant Attorney General
In your letter to the Attorney General dated February 24, 1982, you present two issues for our review.
First, you request that we review OAG 82-99 wherein we relied on KRS 311.377(2) and held that the University of Kentucky acted within the law when it denied a request to inspect the proceedings of the Morbidity and Mortality Committee of the Department of Surgery at the University's Albert B. Chandler Medical Center. You request reconsideration "in light of the case of
McGuffey v. Hall, 557 S.W.2d 401, wherein the statute you rely on appears to have been declared unconstitutional."
We have studied the question you raised and have concluded that we correctly relied on KRS 311.377(2) because since the decision of the Supreme Court in McGuffey v. Hall the General Assembly, by SB 255, Chap. 103, 1980 Acts, amended KRS 311.377 and reenacted subsection (2). In McGuffey v. Hall the Court ruled KRS 311.377 invalid because it was not germane to the subject of the act and therefore fell athwart to § 51 of the Kentucky Constitution. The title of the bill which enacted the statute was "An Act relating to health care malpractice insurance and claims." The Court held that § 9 of the Act, which was codified as KRS 311.377, dealt with a subject matter "not sufficiently related to malpractice claims or insurance to satisfy Constitution § 51." 557 S.W.2d 407.
When KRS 311.377 was amended in 1980 by Senate Bill 255, the title of the act was "An Act relating to medical review organizations." We believe that the title of the act precisely fits the subject matter of KRS 311.377(2). Therefore, the only fault which the Supreme Court found with the statute has now been corrected.
You also ask our reconsideration as to whether KRS 311.377 applies to the University of Kentucky Medical Center. You have suggested no reason why it would not apply and we can think of none. Subsection (2) applies to all organizations mentioned in subsection (1). Included are the following:
"Any committee, board, commission, or other entity which is duly constituted by any licensed hospital, medical society, or association affiliated with the American Medical Association, . . . or the American Hospital Association, or a medical care foundation affiliated with such a medical society or association, or governmental or quasi-governmental agency designated to review and evaluate the health care acts of other health care personnel."
We believe that the University of Kentucky Medical Center is included under one or more of the listed types of organizations.
The second matter to be reviewed per your request is the denial by Mr. Jack Blanton of Mr. Mark Nadler's records request which was stated as follows:
"Pursuant to the provisions of KRS 61, we request permission to examine all records maintained by the University of Kentucky's Albert B. Chandler Medical Center, the University of Kentucky, and University of Kentucky President Otis A. Singletary that in any way relate to or are connected with the proceedings of the Morbidity and Mortality Committee of the Department of Surgery relating to the below described incidents, and any reports, memoranda or other documents which relate to the following incident:
'A nineteen-year-old girl who had her colon removed in operation at the University of Kentucky Medical Center, and which after the removal of the colon it was revealed that the colon was normal in all respects.'"
By letter dated February 3, 1982, Mr. Blanton denied the request of access to the above described records listing three reasons: (1) the statutory confidentiality provided by KRS 311.377; (2) the requester failed to describe the records with particularity; (3) the records are the medical records of an individual patient and as such are exempt from mandatory disclosure by KRS 61.878(1)(a) which exempts from disclosure "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
It is our opinion that any one of the three reasons given by Mr. Blanton is legally sufficient to deny access to the described records, if they exist.
OAG 82-99 and the first part of this opinion deal with reason (1).
As to reason (2), either Mr. Nadler did not know the name of the girl whose colon was removed or else he was trying to avoid the privacy exemption by keeping the name confidential. In either event, the records are not described sufficiently for the custodian to be required to produce them. Inquiries and searches would have to be made to find the records on such a limited description.
As to reason (3), the right of privacy involved belongs to the patient, not to the Medical Center. If the patient consents to disclosure of the records of her case, inspection would have to be allowed except as to records which are made confidential by KRS 311.377(2).
By sending him a copy of this opinion, we are notifying Mr. Blanton of your appeal to the Attorney General and of our conclusion that under the circumstances of this case he acted correctly in his response to Mr. Nadler in his letter of February 3, 1982.