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 CHAPTER 159. PHYSICIAN-PATIENT COMMUNICATION

§ 159.001. Definition

In this chapter, "patient" means a person who, to receive medical care, consults with or is seen by a physician.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

§ 159.002. Confidential Communications

(a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter.

(b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

(c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

(d) The prohibitions of this chapter continue to apply to a confidential communication or record relating to a patient regardless of when the patient receives the services of a physician, except for medical records at least 100 years old that are requested for historical research purposes.

(e) The privilege of confidentiality may be claimed by the patient or by the physician. The physician may claim the privilege of confidentiality only on behalf of the patient. The physician's authority to claim the privilege is presumed in the absence of evidence to the contrary.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

§ 159.003. Exceptions to Confidentiality in Court or Administrative Proceedings

(a) An exception to the privilege of confidentiality in a court or administrative proceeding exists:

(1) in a proceeding brought by a patient against a physician, including:

(A) a malpractice proceeding; or

(B) a criminal proceeding or license revocation proceeding in which the patient is a complaining witness and disclosure is relevant to a claim or defense of the physician;

(2) if the patient or a person authorized to act on the patient's behalf submits a written consent to the release of confidential information as provided by Section 159.005;

(3) in a proceeding to substantiate and collect on a claim for medical services provided to the patient;

(4) in a civil action or administrative proceeding, if relevant, brought by the patient or a person on the patient's behalf, if the patient or person is attempting to recover monetary damages for a physical or mental condition including the patient's death;

(5) in a disciplinary investigation or proceeding conducted under this subtitle, if the board protects the identity of any patient whose medical records are examined other than a patient:

(A) for whom an exception exists under Subdivision (1); or

(B) who has submitted written consent to the release of the medical records as provided by Section 159.005;

(6) in a criminal investigation of a physician in which the board is participating, or assisting in the investigation or proceeding by providing certain medical records obtained from the physician, if the board protects the identity of a patient whose medical records are provided in the investigation or proceeding other than a patient:

(A) for whom an exception exists under Subdivision (1); or

(B) who has submitted written consent to the release of the medical records as provided by Section 159.005;

(7) in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under Chapter 462, 574, or 593, Health and Safety Code;

(8) if the patient's physical or mental condition is relevant to the execution of a will;

(9) if the information is relevant to a proceeding brought under Section 159.009;

(10) in a criminal prosecution in which the patient is a victim, witness, or defendant;

(11) to satisfy a request for medical records of a deceased or incompetent person under Section 4.01(e), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); or

(12) to a court or a party to an action under a court order or court subpoena.

(b) This section does not authorize the release of confidential information to investigate or substantiate criminal charges against a patient.

(c) Records or communications are not discoverable under Subsection (a)(10) until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or any portion of the records or communications. That determination does not constitute a determination as to the admissibility of the information.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

§ 159.004. Exceptions to Confidentiality in Other Situations

An exception to the privilege of confidentiality in a situation other than a court or administrative proceeding, allowing disclosure of confidential information by a physician, exists only with respect to the following:

(1) a governmental agency, if the disclosure is required or authorized by law;

(2) medical or law enforcement personnel, if the physician determines that there is a probability of:

(A) imminent physical injury to the patient, the physician, or another person; or

(B) immediate mental or emotional injury to the patient;

(3) qualified personnel for research or for a management audit, financial audit, or program evaluation, but the personnel may not directly or indirectly identify a patient in any report of the research, audit, or evaluation or otherwise disclose identity in any manner;

(4) those parts of the medical records reflecting charges and specific services provided if necessary in the collection of fees for medical services provided by a physician, professional association, or other entity qualified to provide or arrange for medical services;

(5) a person who has the written consent of the patient or other person authorized to act on the patient's behalf for the release of confidential information, as provided by Section 159.005;

(6) a person, corporation, or governmental agency involved in the payment or collection of fees for medical services provided by a physician;

(7) another physician or other personnel acting under the direction of the physician who participate in the diagnosis, evaluation, or treatment of the patient;

(8) an official legislative inquiry regarding state hospitals or state schools, if:

(A) information or a record that identifies a patient or client is not released for any purpose unless proper consent to the release is given by the patient; and

(B) only records created by the state hospital or school or its employees are included; or

(9) health care personnel of a penal or other custodial institution in which the patient is detained if the disclosure is for the sole purpose of providing health care to the patient.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

§ 159.005. Consent for Release of Confidential Information

(a) Consent for the release of confidential information must be in writing and signed by:

(1) the patient;

(2) a parent or legal guardian of the patient if the patient is a minor;

(3) a legal guardian of the patient if the patient has been adjudicated incapacitated to manage the patient's personal affairs;

(4) an attorney ad litem appointed for the patient, as authorized by:

(A) Subtitle C, Title 7, Health and Safety Code;

(B) Subtitle D, Title 7, Health and Safety Code;

(C) Chapter XIII, Texas Probate Code; or

(D) Chapter 107, Family Code; or

(5) a personal representative of the patient if the patient is deceased.

(b) The written consent must specify:

(1) the information or medical records to be covered by the release;

(2) the reasons or purposes for the release; and

(3) the person to whom the information is to be released.

(c) The patient, or other person authorized to consent, is entitled to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed before the written notice of the withdrawal.

(d) A patient may not bring an action against a physician for a disclosure made by the physician in good faith reliance on an authorized consent if the physician did not have written notice that the authorization was revoked.

(e) A person who receives information made confidential by this subtitle may disclose the information only to the extent consistent with the authorized purposes for which consent to release the information is obtained.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

§ 159.006. Information Furnished by Physician

See, also, italicized material following text of this section

(a) Unless the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient, a physician who receives a written consent for release of information as provided by Section 159.005 shall furnish copies of the requested medical records, or a summary or narrative of the records, including records received from a physician or other health care provider involved in the care or treatment of the patient. The physician shall furnish the information not later than the 30th day after the date of receipt of the request.

(b) The physician may delete confidential information about another patient or a family member of the patient who has not consented to the release.

(c) If the physician denies the request, in whole or in part, the physician shall:

(1) furnish the patient with a written statement, signed and dated, providing the reason for the denial; and

(2) place a copy of the statement denying the request in the patient's medical records.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

Amendment by Acts 1999, 76th Leg., ch. 636, § 1

V.T.C.A., Government Code § 311.031(c) provides, in part, that the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code and that the amendment is preserved and given effect as part of the code provision.

Section 1 of Acts 1999, 76th Leg., ch. 636, eff. Jan. 1, 2000, amends § 5.08(k) and adds § 5.08(q) of Vernon's Ann.Civ.St. art. 4495b [now this section] without reference to the repeal of said article by Acts 1999, 76th Leg., ch. 388, § 6(a). As so amended and added, § 5.08(k) and (q) read:

"(k)(1) A physician shall furnish copies of medical records requested, or a summary or narrative of the records, including records received from a physician or other health care provider involved in the care or treatment of the patient, pursuant to a written consent for release of the information as provided by Subsection (j) of this section, except if the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient, and the physician may delete confidential information about another patient or family member of the patient who has not consented to the release.

"(2) In accordance with Subsection (j) of this section, on receipt of a written request by a subsequent or consulting physician of a patient of the requested physician, the requested physician shall furnish a copy of the complete medical records of the patient to the subsequent or consulting physician. The duty to provide medical records to a subsequent or consulting physician may not be nullified by contract.

"(3) A physician shall provide the information requested under this subsection not later than the 15th business day after the date of receipt of the written consent for release under Subdivision (1) of this subsection or the written request under Subdivision (2) of this subsection.

"(4) If the physician denies the request, in whole or in part, the physician shall furnish the patient a written statement, signed and dated, stating the reason for the denial. A copy of the statement denying the request shall be placed in the patient's medical records."

"(q) The board by rule shall establish conditions under which the board may temporarily or permanently appoint a person or entity as a custodian of a physician's medical records. In adopting rules under this subsection, the board shall consider the death of a physician, the mental or physical incapacitation of a physician, and the abandonment of medical records by a physician. The rules adopted under this subsection must provide for:

"(1) the release of the medical records by an appointed custodian in compliance with this section; and

"(2) a fee charged by the appointed custodian that is in addition to the copying fee governed by Subsections (o) and (p) of this section."

§ 159.007. Medium by Which Information is Provided

A person who is authorized to provide a copy of a record or a summary or narrative of the record to another person under this chapter may provide the copy, summary, or narrative on paper or using any other appropriate medium to which the person who is to provide and the person who is to receive the copy, summary, or narrative agree.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

§ 159.008. Physician Fees for Information

(a) Except as provided by Subsection (b), a physician:

(1) may charge a reasonable fee, as prescribed by board rule, for copying medical records; and

(2) is not required to permit examination or copying of the records until the fee is paid unless there is a medical emergency.

(b) A physician may not charge a fee for copying medical records under Subsection (a) to the extent the fee is prohibited under Subchapter M, Chapter 161, Health and Safety Code.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

§ 159.009. Injunction; Cause of Action for Unauthorized Release of Confidential Information

(a) A person aggrieved by a violation of this chapter relating to the unauthorized release of confidential and privileged communications may petition the district court of the county in which the person resides, or in the case of a nonresident of the state, the district court of Travis County, for appropriate injunctive relief. The petition takes precedence over all civil matters on the docketed court except those matters to which equal precedence on the docket is granted by law.

(b) The aggrieved person may prove a cause of action for civil damages.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.

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