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Wiggins v. Fairfax Park Limited Partnership5/14/1996
that the commission did not err in finding that Code § 65.2-607(A) waives the physician/patient privilege as to all physicians and in all proceedings under the Act.
The commission's ruling is also consistent with the language of Code § 8.01-399(B). Code § 8.01-399(B) provides a qualified statutory physician/patient privilege expressly reserved for civil proceedings. However, medical reports of a plaintiff in a civil action are not protected by the physician/patient privilege if the plaintiff's physical or mental condition is in issue. City of Portsmouth v. Cilumbrello, 204 Va. 11, 15, 129 S.E.2d 31, 34 (1963); see also Code § 8.01-399(B). Moreover, Code § 8.01-399(C)(i) provides that Code § 8.01-399 does not repeal or otherwise affect the provisions of Code § 65.2-607 related to privileged communications between physicians and surgeons and employees under the Act. In Pierce v. Caday, 244 Va. 285, 290, 422 S.E.2d 371, 373 (1992), the Supreme Court cited Code § 65.2-607 as one of many examples where the qualified statutory physician/patient privilege reserved for civil proceedings pursuant to Code § 8.01-399 does not apply.
Claimant also argues that Code § 65.2-604 allows only the employer, employee, or insurer to request medical records related to claimant's condition. Claimant argues that this code section did not give the rehabilitation provider the legal right to request and demand production of medical records from claimant's treating physicians without obtaining claimant's consent. The commission did not specifically address this distinction in the statute. We need not address this argument on appeal. The commission's holding is supported by credible evidence, which showed that the treating physicians refused to produce claimant's medical records to the employer and insurer pursuant to their statutory duty to do so under Code § 65.2-604.
III. CHANGE IN TREATING PHYSICIANS
Claimant argues that the commission erred in requiring him to select a new treating physician on the ground that Drs. McClain and Martuza, and Kaiser and Georgetown, refused to timely provide copies of claimant's medical reports to the employer and insurer upon request. Abundant credible evidence in the record shows that these physicians and medical providers refused to comply with Code § 65.2-604.
The record contains evidence of numerous instances where Drs. McClain and Martuza did not timely or thoroughly respond to the insurer's requests for medical records and information. In addition, Drs. McClain and Martuza and their counsel made it clear to employer's counsel in depositions and in correspondence that they would not voluntarily produce copies of their medical records related to claimant's treatment without a signed patient authorization, a subpoena, or intervention by counsel. This policy is contrary to the statutory duty imposed upon these health care providers by Code § 65.2-604. Because credible evidence supports the commission's finding that Drs. McClain and Martuza were unwilling to meet their statutory duty under Code § 65.2-604, the commission did not err in removing them as the treating physicians and requiring claimant to select a new treating physician from a panel offered by employer.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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