Request By:
Honorable Richard M. Sullivan
Assistant Jefferson County Attorney
1001 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of September 26, 1989, you indicated that the Jefferson County Coroner had asked pursuant to KRS 72.020(2), 72.025(2)(5)(9), and KRS 72.415, that a hospital provide to the Coroner, a deceased's medical records, including his psychiatric records.
Your letter indicates the hospital responded that, pursuant to KRS 421.215, they would not turn the records over to the Coroner because they are privileged communications. The hospital apparently also indicated that providing the records to the Coroner might expose the hospital to legal responsibility for damages to the estate of the deceased.
The records in question were obtained pursuant to a court order, which the hospital did comply with, but under protest. You asked for guidance from this office by way of an opinion should this problem occur in the future.
For reasons discussed below, we believe that in response to a Coroner's Subpoena or other written demand regarding a deceased person, whose death would come under the jurisdiction of the Coroner, a hospital must produce medical and psychiatric records of a deceased. To the extent a privilege is present as between patient and psychiatrist, or the patient's authorized representative, as provided by KRS 421.215, that privilege is abrogated regarding a deceased person, by the specific statutory authority of a coroner to require production of medical records in a death case. KRS 72.415(1).
KRS 421.215(2), passed in 1966, provides in part that:
[A] patient, or his authorized representative, has a privilege to refuse to disclose and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental condition between patient and psychiatrist, or between members of the patient's family and the psychiatrist, or between any of the foregoing and such persons who participate, under the supervision of the psychiatrist, in the accomplishment of the objectives of diagnosis or treatment.
KRS 72.415, passed in 1978, and amended several times since, provides in part:
(1) For the purpose of enforcing the provisions of KRS 72.410 to 72.470, coroners and deputy coroners shall have the full power and authority of peace officers including the power . . . to seize evidence, to interrogate persons, to require the production of medical records, books, papers, documents or other evidence . . . . [Emphasis added.]
In an enactment more recent than that concerning the psychiatrist-patient privilege, the legislature has vested broad authority with the coroner to conduct investigations falling within the coroner's jurisdiction. Included in that authority is the specific power "to require the production of medical records." Records of psychiatric treatment would, we believe, clearly fall within the purview of medical records.
There is a compelling state and public interest in having a proper determination of cause of death. It would be unreasonable to conclude that a non-disclosure privilege concerning psychiatric treatment of a deceased, extends to frustrating the efforts of a coroner acting pursuant to specific statutory authority in a death investigation.
At least two Kentucky cases have interpreted KRS 421.215, regarding the psychiatrist-patient privilege. Southern Bluegrass Mental Health v. Angelucci, Ky., App., 609 S.W.2d 931, (1980), and Amburgey v. Central Kentucky Regional Mental Health Board, Ky., App., 663 S.W.2d 952 (1983). These cases, however, both involved patients who were still living. Both cases are far from holding that a coroner, acting pursuant to specific statutory authority, may not demand production of medical records concerning a deceased person.
The compelling state and public interest in having cause of death correctly ascertained overwhelms any privilege held by an authorized representative of a deceased. Accordingly, a coroner, in our view, may, in connection with an official investigation of a person's death, compel production of that person's psychiatric records. His authority in such regard is not contingent upon notice to or approval by, a deceased's personal representative or family.
We believe no liability would be incurred by a hospital or other custodian of psychiatrist-patient records, vis-a-vis the representative or estate of a deceased person, for release of records regarding psychiatrist-patient communications of a deceased person, to a coroner in response to his written demand pursuant to KRS 72.415. See for example, although regarding the right to privacy, McLean v. Rogers, 100 Mich. App. 734, 300 N.W.2d 389, 391 (1980), (right to privacy ends with the death of the person to whom it is of value and may not be claimed by his estate or next of kin), and Weller vs. Home News Publishing Co., 112 N.J. Super. 502, 271 A.2d 738 (1970) (No recognized cause of action for invasion of a relational right of privacy.) Both cited, OAG 82-590.