MASSACHUSETTS - RESPONDING TO SUBPOENAS AND OTHER DEMANDS FOR YOUR RECORDS AND TESTIMONY

January 1, 2008

Massachusetts state laws and regulations that affect your medical practice

1.How can a Massachusetts physician be sure that complying with a subpoena will not violate the HIPAA privacy regulations?

HIPAA privacy requirements represent the minimum permissible level of confidentiality. In other words, states may enact more rigorous privacy standards and HIPAA will only preempt (i.e. supersede) state privacy provisions that are less stringent than the HIPAA ones. Therefore, if Massachusetts law prohibits disclosure otherwise permitted under HIPAA, then disclosure is prohibited.

The Massachusetts Bar Association states that a health care provider should consider the following factors when responding to a subpoena:

2. The type of information sought by the subpoena (e.g., medical records that contain certain "sensitive" information);

3. The type of entity that receives the subpoena (i.e., a hospital or clinic that is licensed by the Department of Public Health ("DPH"), or some other health care provider – such as a private physician practice);

4. Whether the patient whose records are sought is a party to the underlying proceeding as shown by the case caption appearing on the subpoena;

5. The type of subpoena that is issued (e.g. civil deposition, civil trial subpoena); and

6. Whether Massachusetts law or the [HIPAA] Privacy Standards are more restrictive with respect to the release of information.

Sensitive Information

Certain types of information can only be released pursuant to patient authorization or a court order. The Privacy Standards do not preempt existing state and federal laws requiring specific patient authorization or a specific court order for the release, for example, of HIV/AIDS testing records, certain mental health records, alcohol and drug abuse treatment records and genetic testing records. Therefore, those health care providers who otherwise may provide patient records in response to a subpoena may not do so when the subpoena requests such "sensitive information.

DPH-licensed hospitals and clinics

Because of the interplay between state law and the Privacy Standards, DPH-licensed hospitals and clinics now have to obtain additional information before releasing health information in response to certain subpoenas, absent patient authorization (note that the Privacy Standards have requirements for valid patient authorizations).

Patient is a party to the proceeding

Under Massachusetts law, the medical records of a patient held by a DPH-licensed hospital or clinic are confidential. However, G.L. c. 111 s 70 permits DPH-licensed hospitals and clinics to release medical records pursuant to a subpoena if the records sought are of a party named in the underlying proceeding, as shown by the case caption appearing on the subpoena. The Privacy Standards, by contrast, permit disclosure of protected health information pursuant to a subpoena only if additional steps are taken before such information is released. In this case, the provisions of the Privacy Standards are more protective of patient health information than the more permissive state law and must be followed. Therefore, if a patient is a party to the proceeding as shown by the case caption appearing on the subpoena, hospitals and clinics now must, before releasing the information, receive "satisfactory assurances" from the person seeking the information that such person has made "reasonable efforts" to provide either notice to the patient or to obtain a qualified protective order.

Satisfactory assurances regarding notice

According to the Privacy Standards, a DPH-licensed hospital or clinic has received satisfactory assurances that reasonable efforts have been made to provide notice to the patient if the person seeking the health information provides the hospital or clinic with written documentation that the person has:

1. Made a good faith attempt to provide written notice to the individual at the individual's last known address;

2. Provided sufficient information to the individual to permit the individual to raise objections in the appropriate court; and

3. Shown that the time for the individual to raise objections has elapsed and either no objection has been filed or that all filed objections have been resolved.

Complying with satisfactory assurances regarding notice

Civil deposition subpoenas. Under both the Massachusetts and Federal Rules of Civil Procedure, a party must provide prior notice to the opposing party of a requested deposition or a subpoena for production of documents. This prior notice would satisfy the prior written notice requirements of the Privacy Standards, but would not satisfy the other two requirements, i.e., providing sufficient information to allow the individual to object, and showing that the time for objections has passed with no objection or that objections have been resolved. In order to satisfy the other two requirements, we recommend that attorneys requesting protected health information send a cover letter to the patient's attorney, thereby providing the required notice, information, and opportunity to object to the person whose records are sought. Such a "notice" letter to Jane Doe's attorney regarding her medical records at City Hospital could say:

Attached, pursuant to Rules 30 and 45 of the Massachusetts Rules of Civil Procedure, are copies of a Notice of Deposition and a subpoena request for ______________________________ (specify documents requested in subpoena) relating to the captioned proceeding.

In accordance with the requirements of the Health Insurance Portability and Accountability Act ("HIPAA") Privacy Standards, please notify your client that these records are being sought. In addition, please notify Jane Doe that she and you have ten days from the date of this letter to raise objections to the subpoena in the court in which we have brought the proceeding. If, after ten days, I have received no notification from you that any objection has been raised, I will assume that there is no objection to this request for information, and will so notify City Hospital.

A second letter could be used to provide the keeper of records at the hospital or clinic with written notification that notice was provided to the patient, that the patient was given a reasonable time to object and that no objection was received from the patient:

In accordance with the requirements of the Health Insurance Portability and Accountability Act ("HIPAA") Privacy Standards, please see the attached copy of my letter to Jane Doe's attorney regarding our subpoena to you seeking copies of certain documents held by you pertaining to Jane doe. This letter specifies a ten-day period in which Jane Doe may raise objections to the subpoena and requests that I be notified if such objections are being raised. The requisite ten days have passed and I have received no notice of any such objection.

Upon receipt of the second letter along with a copy of the first letter, City Hospital may release the requested health information for Jane Doe. Alternatively, City Hospital may release Jane Doe's health information pursuant to a properly executed, HIPAA-compliant, authorization form.

Other types of civil subpoenas. Other types of subpoenas to hospitals or clinics, such as trial subpoenas, do not require prior notice to the opposing party. However, the Privacy Standards still require that the hospital or clinic obtain satisfactory assurances with respect to notice to the patient or a qualified protective order. In this context, an attorney requesting John Smith's health information from City Hospital could send a letter to John Smith's attorney, stating:

Attached is a copy of my subpoena request to City Hospital for the production of documents pertaining to your client, John Smith, which I am seeking in relation to the captioned proceeding.

In accordance with the requirements of the Health Insurance Portability and Accountability Act Privacy Standards, please notify John Smith that the production of these documents is being sought. In addition, please notify Mr. Smith that he and you have ten days from the date of this letter to raise objections to the subpoena in the court in which we have brought the proceeding. If, after ten days, I have received no notification from you that any objection has been raised, I will assume that there is no objection to this request for production of documents, and will so notify City Hospital.

Upon the passage of the period of time indicated in the letter, and if Mr. Smith raises no objections, the attorney requesting health information could then send the following letter to the keeper of records at City Hospital, accompanied by a copy of the above letter:

In accordance with the requirements of the Health Insurance Portability and Accountability Act Privacy Standards, please see the attached copy of my letter to John Smith's attorney regarding my subpoena to you seeking the production of certain documents held by you pertaining to John Smith. The letter requests that Mr. Smith's attorney notify Mr. Smith of this subpoena and its request to City Hospital for these documents, specifies a ten-day period in which Mr. Smith may raise objections to the subpoena and requests that I be notified if such objections are being raised. The requisite ten days have passed and I have received no notice of any such objection.

Upon receipt of these two letters, City Hospital will have received "satisfactory assurances" and will be able to release John Smith's health information in compliance with the requirements of both state law and the Privacy Standards. Again, City Hospital may also release health information with patient authorization.

Satisfactory assurances regarding a protective order

The person seeking by way of subpoena protected health information from a DPH-licensed hospital or clinic when the patient is named in the case caption has made "reasonable efforts" regarding securing a "qualified protective order" if the person has provided the hospital or clinic a written statement and accompanying documentation that:

1. Parties to the dispute giving rise to the request for information have agreed to qualified protective order and have presented it to the court; or

2. The person seeking the protected health information has requested a qualified protective order from the court.

Under the Privacy Standards, a "qualified protective order" is an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation that prohibits the parties from using or disclosing the health information for any purpose other than the litigation or proceeding for which such information was requested, and requires the return to the health care provider or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.

Patient is not a party to the proceeding as appearing in case caption

If the patient is not a party to the proceeding as shown by the case caption appearing on the subpoena, the release provisions of G.L. c. s 70 do not apply. In this context, Massachusetts law requires the DPH-licensed hospital or clinic to receive patient authorization or a court order before releasing protected health information. Therefore, in this case, Massachusetts law is more protective of patient rights than the Privacy Standards, and a properly-executed, HIPAA-compliant patient authorization or a court order will be required.

All other health care providers

The provisions of G.L. c. 111 s 70 do not apply to health care providers that are not DPH-licensed hospitals or clinics. Massachusetts health care providers have a duty of confidentiality and generally must not disclose their patients' health information without their patients' consent (or a court order). See Alberts v. Devine, 395 Mass. 59, 68 (1985). Massachusetts law is thus more stringent than the Privacy Standards and health care providers that are not DPH-licensed hospitals or clinics must receive properly executed, HIPAA-compliant patient authorization or a court order before releasing patients' health information.

Privacy standards: Verification and authority

All covered health care providers must verify the identity and authority of a person requesting health information; however, a health care provider is not required to verify the identity of a patient authorizing disclosure of his or her information nor must it authenticate the patient's signature. A health care provider may rely on a subpoena, court order or other legal process to verify the authority of a public official to seek disclosure, if such reliance is reasonable. With respect to attorneys, we believe a similar process is acceptable. If the provider receives a subpoena, court order, or other similar process and the attorney states in writing that he or she represents a party to the underlying lawsuit, we believe the health care provider may rely on such documentation (provided that such reliance is not unreasonable in the circumstances).

Privacy standards: Minimum necessary requirements

All health care providers must make a reasonable effort to disclose only the minimum amount of health information needed to accomplish the intended purpose of the disclosure. For example, a health care provider may not disclose the entire record, unless the entire record is requested or authorized by the patient. However, while health care providers are responsible for not disclosing more information than is needed or requested, they are not required to second guess the scope or purpose of a request or to resist because they believe the request is overbroad.

Summary

As health care providers adopt new procedures in response to the Privacy Standards, obtaining medical records and other health information may be more difficult and time-consuming than in the past. Obtaining appropriate patient authorization, when possible, will be the most efficient way to obtain health information. Absent patient consent, practitioners with an understanding of the new rules will be able to expedite the process by providing health care providers with the documents they need to release needed information.

Massachusetts Bar Association, "Obtaining Medical Records with Subpoenas: The Effect of the Privacy Standards," by J. Michael Scully and Elizabeth H. Sillin

It is important to remember that subpoenas are often overly broad and may request information which, as set forth above, is privileged. It is wise to err on the side of caution, responding to a subpoena in a professional manner but providing no information until you consult with an attorney and obtain confirmation that patient consent is either given or not required and/or notice requirements have been met.

2. What general rules should I keep in mind if served with a subpoena?:

(a) Alert your insurer if you're concerned that your testimony in a deposition might implicate you in a malpractice case.

(b) In responding to a subpoena, be sure not to breach HIPAA or patient confidentiality rules.

( c ) Don't confuse a subpoena with a court order.

Remember, physicians are routinely subpoenaed to provide copies of their medical records and give testimony concerning care they've rendered. It shouldn't automatically be a cause for panic: A subpoena doesn't necessarily mean you're being sued. Many are merely requests for a patient's medical records that are needed in, say, a worker's compensation hearing or an auto accident claim. But regardless of why you've been served with a subpoena, you have to handle it very carefully. Here are guidelines:

When served with a subpoena involving a case in which you've been sued for malpractice, contact your malpractice carrier right away. Notify your carrier, too, if you're subpoenaed to testify in an existing case (usually by way of deposition), and you believe that testimony could implicate you. The subpoena might be a sign that a suit is under consideration, and your malpractice carrier will probably appoint an attorney to review the case, assist you in your response, prepare you for the deposition, and represent you when you testify. If you don't alert your carrier, but provide testimony or other information that implicates you in a medical liability case, your carrier could deny coverage if you're ultimately sued.

What if the subpoena isn't related to a malpractice action, but a lawyer simply wants records for an accident or disability case? You still have to proceed with caution. Despite the official look of the document, most subpoenas are just pieces of paper signed by an attorney. Even though they may appear to have been signed by a government official, they probably haven't been. Attorneys are often authorized to sign officials' names.

Rules governing subpoenas vary from state to state and court to court and your obligations to comply usually depends on whether the document has been properly issued, signed, and served. To make sure that a subpoena is valid, determine (or ask your attorney to determine) what court or agency is involved, and whether the matter concerns a civil or criminal case. This information is generally available in the caption (the heading on the document that shows the names of the court and parties involved).

Providing information or testimony in response to an invalid subpoena, or one that improperly seeks privileged information can lead to serious problems if you breach physician-patient confidentiality or a patient's right to privacy. Depending on the situation you may need to obtain a HIPAA-compliant patient consent to release the records or other information sought, or notify the patient that a subpoena has been issued for that information so that the patient can be given an opportunity to object to its release. If the patient hasn't been notified, or objects to the release of his records, you generally should not comply without a court order. A subpoena isn't a court order. One exception to this rule may be if the information is being subpoenaed by a State licensing board or certain other governmental agencies. In these cases, check with your attorney.

Find out, too, whether you're being asked to provide expert testimony. While you can be subpoenaed to give fact testimony, you generally can't be compelled to give expert testimony. If an attorney seeks your expert opinion and you're willing to provide it, you have the right to be paid for your opinion.

Testifying in a legal proceeding can take up large chunks of your day. If the time or place written on the subpoena isn't convenient for you, ask the issuing attorney to change it. If you're required to testify before a court or other tribunal, ask the attorney to place you on two hour notice.

Your attorney can help you develop a policy for dealing with subpoenas. Once that policy is in place, you don't have to get a legal opinion in every instance.

3. What are some of Massachusetts' specific requirements regarding subpoenas?

A clerk of a court of record, a notary public or a justice of the peace may issue summonses for witnesses in all cases pending before courts, magistrates, auditors, referees, arbitrators or other persons authorized to examine witnesses, and at all hearings upon applications for complaints wherein a person may be charged with the commission of a crime; but a notary public or a justice of the peace shall not issue summonses for witnesses in criminal cases except upon request of the attorney general, district attorney or other person who acts in the case in behalf of the commonwealth or of the defendant. If the summons is issued at the request of the defendant that fact shall be stated therein. The summons shall be in the form heretofore adopted and commonly used, but may be altered from time to time like other writs.

M.G.L.A. 233 § 1

Such summons may be served in any county by an officer qualified to serve civil process or by a disinterested person by exhibiting and reading it to the witness, by giving him a copy thereof or by leaving such copy at his place of abode.

M.G.L.A. 233 § 2

No person shall be required to attend as a witness in a civil case or for the defendant in a criminal case except a person summonsed to attend as a witness for an indigent defendant in a criminal case, unless the legal fees for one day's attendance and for travel to and from the place where he is required to attend are paid or tendered to him.

M.G.L.A. 233 § 3

If a person who has been duly summoned and required to attend as a witness under the preceding sections fails, without a sufficient excuse, to attend, he shall be liable to the aggrieved party in tort for all damages caused by such failure.

M.G.L.A. 233 § 4

Such failure to attend as a witness before a court, justice of the peace, master in chancery, master or auditor appointed by a court, or the county commissioners, shall also be a contempt of the court, and may be punished, in case of such failure to attend as a witness in a criminal prosecution, by a fine of not more than two hundred dollars or by imprisonment for not more than one month or both, or, in case of any other such failure to attend as aforesaid, by a fine of not more than twenty dollars.

M.G.L.A. 233 § 5

The court, justice, master in chancery, master, auditor or county commissioners may in such case issue a warrant to bring such witness before them to answer for the contempt, and also to testify in the case in which he was summoned.

M.G.L.A. 233 § 6

Witnesses may be summoned to attend and testify at a hearing before the executive council, or a committee thereof, as to matters within its authority. They shall be summoned in the same manner, be paid the same fees and in the same manner, and be subject to the same penalties for default, as witnesses before the general court.

M.G.L.A. 233 § 7

Witnesses may be summoned to attend and testify and to produce books and papers at a hearing before a city council, or either branch thereof, or before a joint or special committee of the same or of either branch thereof, or before a board of selectmen, a board of police commissioners, a fire commissioner or a board of fire commissioners, a commissioner of public safety, a school board, the alcoholic beverages control commission, a licensing board or licensing authorities, a board of registrars of voters, the police commissioner or election commissioners of Boston, the Massachusetts Water Resources Authority, the state racing commission, the parole board or a board of appeals, as to matters within their authority; and such witnesses shall be summoned in the same manner, be paid the same fees and be subject to the same penalties for default, as witnesses in civil cases before the courts. The presiding officer of such council, or of either branch thereof, or a member of any such committee, board or commission, or any such commissioner, may administer oaths to witnesses who appear before such council, branch thereof, committee, board, commission or commissioner, respectively.

M.G.L.A. 233 § 8

If a witness who has been so summoned and paid or tendered the proper fees fails to attend in pursuance thereof, the presiding officer of such city council, or of either branch thereof, or the chairman of such committee, board or commission, or any such commissioner, may issue a warrant to bring such witness before them, to testify in the case in which he was summoned.

M.G.L.A. 233 § 9

A justice of the supreme judicial or the superior court, upon application of a tribunal authorized to summon but not to compel the attendance of witnesses and the giving of testimony before it, may, in his discretion, compel the attendance of such witnesses and the giving of testimony before any such tribunal, in the same manner and to the same extent as before said courts.

M.G.L.A. 233 § 10

A justice of the supreme judicial or the superior court, upon the application of a magistrate or tribunal authorized to summon and compel the attendance of witnesses may, in his discretion, compel the giving of testimony by them before such magistrate or tribunal, in the same manner and to the same extent as before said courts.

M.G.L.A. 233 § 11

A justice of the peace, upon receipt of a certificate of the clerk of a court of record in the state of Maine or in a state adjoining this commonwealth that a criminal prosecution is pending in such court, and that a resident of the commonwealth is supposed to be a material witness therein, shall issue a summons requiring such witness to appear and testify at the court in which such case is pending.

M.G.L.A. 233 § 12

If the person on whom such summons is served is paid or tendered double the fees allowed by law for travel and attendance of witnesses in the supreme judicial court, and double traveling expenses for the whole distance out and home by the ordinary traveled route, he shall, if he neglects without good cause to attend as a witness at the court named in such summons, forfeit not more than three hundred dollars.

M.G.L.A. 233 § 13

If a certificate wherein a judge of a court of record in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal actions, prosecutions and other criminal proceedings pending, or grand jury investigations and other proceedings commenced or about to commence, in this commonwealth certifies under the seal of such court that there is a criminal proceeding pending in such court, or that a grand jury investigation or proceeding has commenced or is about to commence within the jurisdiction of such court, that a person being within this commonwealth is a material witness in such proceeding or investigation and that his presence will be required for a specified number of days, is presented to a justice of the superior court sitting in and for the county, or the justice or a special justice of the district court in the judicial district, in which such person is, such justice or special justice shall make an order directing such person to appear at a time and place certain for a hearing upon the question of compelling his attendance at such proceeding or investigation.

If at the hearing the justice or special justice determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the proceeding or investigation in such other state, and that the laws of such other state and of any other state through which the witness may be required to pass by the ordinary traveled route will give to him protection from arrest and the service of process, civil or criminal, as provided in section thirteen C, he shall issue a summons, which term shall include a subpoena, order or other notice requiring the appearance of a witness in any state where such process is used in lieu of a summons, with a copy of such certificate attached, directing the witness to attend and testify in the court where the proceeding is pending, or before the grand jury before which the investigation or proceeding has commenced or is about to commence, at a time and place specified in the summons. At any such hearing such certificate shall be prima facie evidence of all the facts stated therein.

If in any such certificate it is recommended that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance at such a proceeding or investigation therein, such justice or special justice may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for said hearing and the justice or special justice at the hearing, if satisfied of the desirability of such custody and delivery, for which determination such certificate shall be prima facie evidence of such desirability, may, in lieu of issuing a summons, order that said witness be taken into custody and delivered to an officer of the requesting state.

If a witness who is summoned as hereinbefore provided, after being paid or tendered by some properly authorized person the sum of ten cents a mile for each mile by the ordinary traveled route to and from the place where the proceeding is pending, or the grand jury investigation or proceeding has commenced or is about to commence, and five dollars for each day that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of a witness who disobeys a summons issued from a court of record of this commonwealth.

M.G.L.A. 233 § 13A

If a person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal proceedings pending, or grand jury investigations and proceedings commenced or about to commence, in this commonwealth is a material witness in a criminal proceeding pending in a court of record of this commonwealth, or in a grand jury investigation or proceeding which has commenced or is about to commence within the jurisdiction of such a court of record, a justice or special justice of such court may issue a certificate under the seal of the court, stating such facts and specifying the number of days the witness will be required, which certificate may be presented in accordance with the laws of such other state to a magistrate or officer thereof for appropriate action to secure the attendance of such witness in this commonwealth. Such certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this commonwealth to assure his attendance in this commonwealth.

If the witness is summoned to attend and testify in this commonwealth he shall be tendered the sum of ten cents a mile for each mile by the ordinary traveled route to and from the place where the criminal proceeding is pending, or the grand jury investigation or proceeding has commenced or is about to commence, and five dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this commonwealth a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court having jurisdiction of the criminal proceeding or grand jury investigation or proceeding; and any court order that such witness remain after the time for which he was summoned shall be conditioned upon the immediate tender to him of five dollars for each day during which his further attendance as a witness is ordered. If such a witness, after coming into this commonwealth, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of a witness who disobeys a summons issued from a court of record of this commonwealth.

M.G.L.A. 233 § 13B

If a person comes into this commonwealth in obedience to a summons or order directing him to attend and testify in a criminal proceeding or grand jury investigation or proceeding in this commonwealth he shall not, while in this commonwealth pursuant to such summons or order, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this commonwealth under the summons or order.

If a person passes through this commonwealth while going to another state in obedience to a summons or order to attend and testify in a criminal proceeding or grand jury investigation or proceeding in that state, or while returning therefrom, he shall not, while so passing through this commonwealth, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this commonwealth under the summons or order.

Nothing in this section or either of the two preceding sections shall preclude action under sections twelve and thirteen or under similar reciprocal provisions of law in other states.

M.G.L.A. 233 § 13C

Arbitrators, referees, masters and auditors appointed according to law may administer oaths or affirmations to all persons offered as witnesses before them.

M.G.L.A. 233 § 14

If a person to be sworn declares that a different mode of taking the oath is in his opinion more solemn and obligatory than the upholding of the hand, the oath may be administered in such mode.

M.G.L.A. 233 § 16

A Friend or Quaker when called on to take an oath may solemnly and sincerely affirm under the penalties of perjury.

M.G.L.A. 233 § 17

A person who declares that he has conscientious scruples against taking an oath shall, when called upon for that purpose, be permitted to affirm in the manner prescribed for Quakers, if the court or magistrate on inquiry is satisfied of the truth of such declaration.

M.G.L.A. 233 § 18

A person believing in any other than the Christian religion may be sworn according to the appropriate ceremonies of his religion. A person not a believer in any religion shall be required to testify truly under the penalties of perjury, and evidence of his disbelief in the existence of God may not be received to affect his credibility as a witness.

M.G.L.A. 233 § 19

Any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, in court or before a person who has authority to receive evidence, except as follows:

First, except in a proceeding arising out of or involving a contract made by a married woman with her husband, any criminal proceeding in which one spouse is a defendant alleged to have committed a crime against the other spouse or to have violated a temporary or permanent vacate, restraining, or no-contact order or judgment or a similar protection order issued by another jurisdiction, obtained by the other spouse, and except in a proceeding involving abuse of a person under the age of eighteen, including incest, neither husband nor wife shall testify as to private conversations with the other.

Second, except as otherwise provided and except in any proceeding relating to child abuse, including incest, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other;

Third, the defendant in the trial of an indictment, complaint or other criminal proceeding shall, at his own request, but not otherwise, be allowed to testify; but his neglect or refusal to testify shall not create any presumption against him.

Fourth, an unemancipated, minor child, living with a parent, shall not testify before a grand jury, trial of an indictment, complaint or other criminal proceeding, against said parent, where the victim in such proceeding is not a member of said parent's family and who does not reside in the said parent's household. For the purposes of this clause the term "parent" shall mean the natural or adoptive mother or father of said child.

M.G.L.A. 233 § 20

A priest, rabbi or ordained or licensed minister of any church or an accredited Christian Science practitioner shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs; nor shall a priest, rabbi or ordained or licensed minister of any church or an accredited Christian Science practitioner testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.

M.G.L.A. 233 § 20A

The following words as used in this section shall have the following meanings:--

"Patient", a person who, during the course of diagnosis or treatment, communicates with a psychotherapist;

"Psychotherapist", a person licensed to practice medicine, who devotes a substantial portion of his time to the practice of psychiatry. "Psychotherapist" shall also include a person who is licensed as a psychologist by the board of registration of psychologists; a graduate of, or student enrolled in, a doctoral degree program in psychology at a recognized educational institution as that term is defined in section 118, who is working under the supervision of a licensed psychologist; or a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist, pursuant to the provisions of section eighty B of chapter one hundred and twelve.

"Communications" includes conversations, correspondence, actions and occurrences relating to diagnosis or treatment before, during or after institutionalization, regardless of the patient's awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing.

Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition. This privilege shall apply to patients engaged with a psychotherapist in marital therapy, family therapy, or consultation in contemplation of such therapy.

If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his behalf under this section. A previously appointed guardian shall be authorized to so act.

Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.

The privilege granted hereunder shall not apply to any of the following communications:

(a) If a psychotherapist, in the course of his diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided however that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities.

(b) If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient's mental or emotional condition but not as a confession or admission of guilt.

( c ) In any proceeding, except one involving child custody, adoption or adoption consent, in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.

(d) In any proceeding after the death of a patient in which his mental or emotional condition is introduced by any party claiming or defending through or as a beneficiary of the patient as an element of the claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.

(e) In any case involving child custody, adoption or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, in the exercise of his discretion, determines that the psychotherapist has evidence bearing significantly on the patient's ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected; provided, however, that in such cases of adoption or the dispensing with the need for consent to adoption, a judge shall determine that the patient has been informed that such communication would not be privileged.

(f) In any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal or license revocation proceeding, in which disclosure is necessary or relevant to the claim or defense of the psychotherapist.

The provision of information acquired by a psychotherapist relative to the diagnosis or treatment of a patient's emotional condition, to any insurance company, nonprofit hospital service corporation, medical service corporation, or health maintenance organization, or to a board established pursuant to section twelve of chapter one hundred and seventy-six B, pertaining to the administration or provision of benefits, including utilization review or peer review, for expenses arising from the out-patient diagnosis or treatment, or both, of mental or nervous conditions, shall not constitute a waiver or breach of any right to which said patient is otherwise entitled under this section and section thirty-six B of chapter one hundred and twenty-three.

M.G.L.A. 233 § 20B

In any investigation or proceeding before a grand jury, or in a criminal proceeding in the supreme judicial court, appeals court or superior court involving any offense listed in section 20D, a witness shall not be excused from testifying or from producing books, papers or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture, if he has been granted immunity with respect to the transactions, matters or things concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence by a justice of the supreme judicial court, appeals court or superior court, as provided in section 20E.

M.G.L.A. 233 § 20C

A witness who is called or who may be called to testify before a grand jury or in a criminal proceeding in the supreme judicial court, appeals court or superior court may, in the manner provided in section twenty E, be granted immunity in any proceeding or investigation involving the following crimes: abortion, arson, assault and battery to collect a loan, assault and battery by means of a dangerous weapon, assault to murder, breaking and entering a dwelling house or a building, bribery, burning of a building or dwelling house or other property, burglary, counterfeiting, deceptive advertising, electronic eavesdropping, embezzlement, extortion, firearm violations, forgery, fraudulent personal injury and property damage claims, violation of the gaming laws, gun registration violations, intimidation of a witness or of a juror, insurance law violations, kidnapping, larceny, lending of money or thing of value in violation of the general laws, liquor law violations, mayhem, murder, violation of the narcotic or harmful drug laws, perjury, prostitution, violations of environmental control laws (pollution), violations of conflicts of interest laws, consumer protection laws, pure food and drug law violations, receiving stolen property, robbery, subornation of perjury, uttering, or any felony, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses.

M.G.L.A. 233 § 20D

Immunity:

(a) A justice of the supreme judicial court, appeals court or superior court shall, at the request of the attorney general or a district attorney, and after a hearing, issue an order granting immunity to a witness, provided that such justice finds that the investigation or proceeding before the grand jury or the criminal proceeding in the supreme judicial court, appeals court or superior court involves an offense listed in section 20D and that the witness did validly refuse, or is likely to refuse, to answer questions or produce evidence on the grounds that such testimony or such evidence might tend to incriminate him. If such justice so finds, such justice shall order the witness to answer the questions or produce the evidence requested and, if he so orders, such order and the order granting immunity shall be in writing and shall become effective upon the refusal of the witness to answer any question or produce any evidence requested on the basis of his privilege against self-incrimination.

(b) The witness shall be entitled to representation by an attorney at the hearing, which shall not be open to the public. The court may appoint counsel for the witness.

( c ) An application filed pursuant to this section shall, at the request of the attorney general or a district attorney, act to stay any criminal proceedings in the supreme judicial court, appeals court or superior court, but not grand jury proceedings, until such time as a justice acts upon such application; provided, however, that a justice shall conduct an expedited hearing when such application is brought after the impanelment of a jury in the superior court.

(d) When the attorney general or a district attorney brings such application, he shall, at least three days before the date fixed for hearing on his application, send by certified mail or deliver a copy of such application to the attorney general and to each other district attorney in the commonwealth. The attorney general and any of the district attorneys may waive, either orally or in writing, his right to be served with such application. The attorney general and any such district attorney may file an appearance and have the right to be heard at the hearing as herein provided.

(e) An affidavit of proof of service or, in the alternative, waiver of such service, upon each district attorney and the attorney general shall be filed with the court.

(f) A transcript shall be made of the proceedings at the hearing and a certified copy of said transcript shall be transmitted to the grand jury or the court, whichever is appropriate.

M.G.L.A. 233§ 20E

A witness who has been granted immunity as provided in section 20E shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction matter, or thing concerning which he is so compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal or civil proceeding against him in any court of the commonwealth, except in a prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion, pursuant to section 20C or 20E.

A witness who has been granted immunity shall be given a certified copy of the transcript, if he so requests, of any testimony that he furnished in compliance with an order of the court to testify, and shall be given a copy of all documents he has furnished in compliance with such order.

A transcript of said testimony and copies of said documents shall be maintained by the supreme court, appeals court or superior court, and shall be available at the request of such witness in any subsequent proceeding involving the witness.

M.G.L.A. 233 § 20G

If a witness has been granted immunity pursuant to the provisions of section twenty E by a justice of the supreme judicial court, appeals court or superior court and thereafter refuses to testify or produce evidence after being so ordered by such justice, the attorney general or district attorney shall institute contempt proceedings against such witness in the court where the alleged contempt occurred, and, after hearing or trial, if such witness is adjudged in contempt of court, he shall be punished by imprisonment in the house of correction for a term not to exceed one year or until he complies with the order of the court, whichever occurs first. The rules of practice and procedure relative to criminal appeals as provided by the Massachusetts Rules of Criminal Procedure and the Massachusetts Rules of Appellate Procedure shall apply to appeals under this section.

M.G.L.A. 233§ 20H

Sexual Assault:

As used in this section the following words, unless the context clearly requires otherwise, shall have the following meaning:--

"Rape crisis center", any office, institution or center offering assistance to victims of sexual assault and the families of such victims through crisis intervention, medical and legal counseling.

"Sexual assault counselor", a person who is employed by or is a volunteer in a rape crisis center, has undergone thirty-five hours of training, who reports to and is under the direct control and supervision of a licensed social worker, nurse, psychiatrist, psychologist or psychotherapist and whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.

"Victim", a person who has suffered a sexual assault and who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by such sexual assault.

"Confidential communication", information transmitted in confidence by and between a victim of sexual assault and a sexual assault counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term includes all information received by the sexual assault counselor which arises out of and in the course of such counseling and assisting, including, but not limited to reports, records, working papers or memoranda.

A sexual assault counselor shall not disclose such confidential communication, without the prior written consent of the victim; provided, however, that nothing in this chapter shall be construed to limit the defendant's right of cross-examination of such counselor in a civil or criminal proceeding if such counselor testifies with such written consent.

Such confidential communications shall not be subject to discovery and shall be inadmissible in any criminal or civil proceeding without the prior written consent of the victim to whom the report, record, working paper or memorandum relates.

M.G.L.A. 233 § 20J

Domestic Abuse:

As used in this section the following words shall unless the context clearly requires otherwise have the following meanings:--

"Abuse", causing or attempting to cause physical harm; placing another in fear of imminent physical harm; causing another to engage in sexual relations against his will by force, threat of force, or coercion.

"Confidential communication", information transmitted in confidence by and between a victim and a domestic violence victims' counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term includes all information received by the domestic violence victims' counselor which arises out of and in the course of such counseling and assisting, including, but not limited to, reports, records, working papers, or memoranda.

"Domestic violence victims' counselor", a person who is employed or volunteers in a domestic violence victims' program, who has undergone a minimum of twenty-five hours of training and who reports to and is under the direct control and supervision of a direct service supervisor of a domestic violence victims' program, and whose primary purpose is the rendering of advice, counseling or assistance to victims of abuse.

"Domestic violence victims' program", any refuge, shelter, office, safe home, institution or center established for the purpose of offering assistance to victims of abuse through crisis intervention, medical, legal or support counseling.

"Victim", a person who has suffered abuse and who consults a domestic violence victims' counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by such abuse.

A domestic violence victims' counselor shall not disclose such confidential communication without the prior written consent of the victim, except as hereinafter provided. Such confidential communication shall not be subject to discovery in any civil, legislative or administrative proceeding without the prior written consent of the victim to whom such confidential communication relates. In criminal actions such confidential communication shall be subject to discovery and shall be admissible as evidence but only to the extent of information contained therein which is exculpatory in relation to the defendant; provided, however, that the court shall first examine such confidential communication and shall determine whether or not such exculpatory information is therein contained before allowing such discovery or the introduction of such evidence.

M.G.L.A. 233 § 20K

The location and street address of all domestic violence victims' programs, as defined in section twenty K and rape crisis centers, as defined in section twenty J, shall be absolutely confidential and shall not be required to be revealed in any criminal or civil proceeding.

M.G.L.A. 233 § 20L

At trial of a civil matter in the district court department of the trial court, the justice may order, or, upon the request of a party, authorize the taking of a deposition of the testimony of a medical witness. Said deposition shall be taken for use as medical evidence only, and shall be admissible in whole or in part in a proceeding before said district court department. The expense for stenographic service in connection with the taking of such deposition shall be paid by the party requesting that such witness be deposed, or whose witness is ordered to be deposed; provided, however, that if the judgment entered by the district court justice is in favor of the plaintiff, the cost of such stenographic expense shall be added to such judgment and shall be paid by the insurer, if the defendant has insurance, or by the defendant, if he does not have such insurance.

M.G.L.A. 233§ 24A

Records kept by hospitals, dispensaries or clinics, and sanatoria shall be admissible, and records which the court finds are required to be kept by the laws of any other state or territory, or the District of Columbia, or by the laws and regulations of the United States of America pertaining to the department of national defense and the veterans administration, by hospitals, dispensaries or clinics, and sanatoria similarly conducted or operated or which, being incorporated, offer treatment free of charge, may be admitted by the court, in its discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases and the court may, in its discretion, admit copies of such records, if certified by the persons in custody thereof to be true and complete; but nothing therein contained shall be admissible as evidence which has reference to the question of liability. Copies of photographic or microphotographic records so kept by hospitals, dispensaries or clinics, or sanatoria, when duly certified by the person in charge of the hospital, dispensary or clinic, or sanatorium, shall be admitted in evidence equally with the original photographs or microphotographs.

A record kept by any hospital, dispensary or clinic, or sanatorium which is required to be produced in court by any party shall be certified by the affidavit of the person in custody thereof to be a true and complete record, and shall be delivered by such hospital, dispensary or clinic, or sanatorium to the clerk of such court, who shall keep the same in his custody until its production is called for at the trial or hearing by the party requiring the said record. Such record, so certified and delivered shall be deemed to be sufficiently identified to be admissible in evidence if admissible in all other respects. The party requiring the production of said record and, in the discretion of the court, any other party may examine said record in the custody of the clerk at any time before it is produced in court. The clerk upon completion of such trial or hearing shall notify such hospital that said record is no longer required and will be returned to the hospital by certified mail unless an authorized representative of the hospital calls for the same at the office of said clerk within seven days of said notice.

M.G.L.A. 233 § 79

In any proceeding commenced in any court, commission or agency, an itemized bill and reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person, including, but not limited to hospital medical records subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services or by the pharmacist or retailer of orthopedic appliances, shall be admissible as evidence of the fair and reasonable charge for such services or the necessity of such services or treatments, the diagnosis of said physician or dentist, the prognosis of such physician or dentist, the opinion of such physician or dentist as to proximate cause of the condition so diagnosed, the opinion of such physician or dentist as to disability or incapacity, if any, proximately resulting from the condition so diagnosed; provided, however, that written notice of the intention to offer such bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to the action to summon, at his own expense, such physician, dentist, pharmacist, retailer of orthopedic appliances or agent of such hospital or health maintenance organization or the records of such hospital or health maintenance organization for the purpose of cross examination with respect to such bill, record and report or to rebut the contents thereof, or for any other purpose, nor to limit the right of any party to the action or proceeding to summon any other person to testify in respect to such bill, record or report or for any other purpose.

The words "physician" and "dentist" shall not include any person who is not licensed to practice as such under the laws of the jurisdiction within which such services were rendered, but shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered.

The word "hospital" shall mean any hospital required to keep records, or which is in any way licensed or regulated by the laws of any other state, or by the laws and regulations of the United States of America, including hospitals of the Veterans Administration or similar type institutions, whether incorporated or not.

M.G.L.A. 233 § 79G

In an action of tort for personal injuries or death, or for consequential damages arising from such personal injuries, the medical report of a deceased physician who attended or examined the plaintiff, including expressions of medical opinion, shall, at the discretion of the trial judge, be admissible in evidence, but nothing therein contained which has reference to the question of liability shall be so admissible. Any opposing party shall have the right to introduce evidence tending to limit, modify, contradict or rebut such medical report. The word "physician" as used in this section shall not include any person who was not licensed to practice medicine under the laws of the jurisdiction within which such medical attention was given or such examination was made.

M.G.L.A. 233 § 79H

4. What are patients' rights in Massachusetts?

As used in this section, "facility" shall mean any hospital, institution for the care of unwed mothers, clinic, infirmary maintained in a town, convalescent or nursing home, rest home, or charitable home for the aged, licensed or subject to licensing by the department; any state hospital operated by the department; any private, county or municipal facility, department or ward which is licensed or subject to licensing by the department of mental health; or by the department of mental retardation; the Soldiers Home in Holyoke, and the Soldiers' Home in Massachusetts.

The rights established under this section shall apply to every patient or resident in said facility. Every patient or resident shall receive written notice of the rights established herein upon admittance into such facility, except that if the patient is a member of a health maintenance organization and the facility is owned by or controlled by such organization, such notice shall be provided at the time of enrollment in such organization, and also upon admittance to said facility. In addition, such rights shall be conspicuously posted in said facility.

Every such patient or resident of said facility shall have, in addition to any other rights provided by law, the right to freedom of choice in his selection of a facility, or a physician or health service mode, except in the case of emergency medical treatment or as otherwise provided for by contract, or except in the case of a patient or resident of a facility named in section fourteen A of chapter nineteen; provided, however, that the physician, facility, or health service mode is able to accommodate the patient exercising such right of choice.

Every such patient or resident of said facility in which billing for service is applicable to such patient or resident, upon reasonable request, shall receive from a person designated by the facility an itemized bill reflecting laboratory charges, pharmaceutical charges, and third party credits and shall be allowed to examine an explanation of said bill regardless of the source of payment. This information shall also be made available to the patient's attending physician.

Every patient or resident of a facility shall have the right:

(a) Upon request, to obtain from the facility in charge of his care the name and specialty, if any, of the physician or other person responsible for his care or the coordination of his care;

(b) To confidentiality of all records and communications to the extent provided by law;

( c ) To have all reasonable requests responded to promptly and adequately within the capacity of the facility;

(d) Upon request, to obtain an explanation as to the relationship, if any, of the facility to any other health care facility or educational institution insofar as said relationship relates to his care or treatment;

(e) To obtain from a person designated by the facility a copy of any rules or regulations of the facility which apply to his conduct as a patient or resident;

(f) Upon request, to receive from a person designated by the facility any information which the facility has available relative to financial assistance and free health care;

(g) Upon request, to inspect his medical records and to receive a copy thereof in accordance with section seventy, and the fee for said copy shall be determined by the rate of copying expenses, except that no fee shall be charged to any applicant, beneficiary or individual representing said applicant or beneficiary for furnishing a medical record if the record is requested for the purpose of supporting a claim or appeal under any provision of the Social Security Act or federal or state financial needs-based benefit program, and the facility shall furnish a medical record requested pursuant to a claim or appeal under any provision of the Social Security Act or any federal or state financial needs-based benefit program within thirty days of the request; provided, however, that any person for whom no fee shall be charged shall present reasonable documentation at the time of such records request that the purpose of said request is to support a claim or appeal under any provision of the Social Security Act or any federal or state financial needs-based benefit program;

(h) To refuse to be examined, observed, or treated by students or any other facility staff without jeopardizing access to psychiatric, psychological, or other medical care and attention;

(i) To refuse to serve as a research subject and to refuse any care or examination when the primary purpose is educational or informational rather than therapeutic;

(j) To privacy during medical treatment or other rendering of care within the capacity of the facility;

(k) To prompt life saving treatment in an emergency without discrimination on account of economic status or source of payment and without delaying treatment for purposes of prior discussion of the source of payment unless such delay can be imposed without material risk to his health, and this right shall also extend to those persons not already patients or residents of a facility if said facility has a certified emergency care unit;

(l) To informed consent to the extent provided by law;

(m) Upon request to receive a copy of an itemized bill or other statement of charges submitted to any third party by the facility for care of the patient or resident and to have a copy of said itemized bill or statement sent to the attending physician of the patient or resident;

(n) If refused treatment because of economic status or the lack of a source of payment, to prompt and safe transfer to a facility which agrees to receive and treat such patient. Said facility refusing to treat such patient shall be responsible for: ascertaining that the patient may be safely transferred; contacting a facility willing to treat such patient; arranging the transportation; accompanying the patient with necessary and appropriate professional staff to assist in the safety and comfort of the transfer, assure that the receiving facility assumes the necessary care promptly, and provide pertinent medical information about the patient's condition; and maintaining records of the foregoing; and

(o) If the patient is a female rape victim of childbearing age, to receive medically and factually accurate written information prepared by the commissioner of public health about emergency contraception; to be promptly offered emergency contraception; and to be provided with emergency contraception upon request.

Every patient or resident of a facility shall be provided by the physician in the facility the right:

(a) To informed consent to the extent provided by law;

(b) To privacy during medical treatment or other rendering of care within the capacity of the facility;

( c ) To refuse to be examined, observed, or treated by students or any other facility staff without jeopardizing access to psychiatric, psychological or other medical care and attention;

(d) To refuse to serve as a research subject, and to refuse any care or examination when the primary purpose is educational or informational rather than therapeutic;

(e) To prompt life saving treatment in an emergency without discrimination on account of economic status or source of payment and without delaying treatment for purposes of prior discussion of source of payment unless such delay can be imposed without material risk to his health;

(f) Upon request, to obtain an explanation as to the relationship, if any, of the physician to any other health care facility or educational institutions insofar as said relationship relates to his care or treatment, and such explanation shall include said physician's ownership or financial interest, if any, in the facility or other health care facilities insofar as said ownership relates to the care or treatment of said patient or resident;

(g) Upon request to receive an itemized bill including third party reimbursements paid toward said bill, regardless of the sources of payment;

(h) In the case of a patient suffering from any form of breast cancer, to complete information on all alternative treatments which are medically viable.

Except in cases of emergency surgery, at least ten days before a physician operates on a patient to insert a breast implant, the physician shall inform the patient of the disadvantages and risks associated with breast implantation. The information shall include, but not be limited to, the standardized written summary provided by the department. The patient shall sign a statement provided by the department acknowledging the receipt of said standardized written summary. Nothing herein shall be construed as causing any liability of the department due to any action or omission by said department relative to the information provided pursuant to this paragraph. The department of public health shall:

(1) Develop a standardized written summary, as set forth in this paragraph in layman's language that discloses side effects, warnings, and cautions for a breast implantation operation within three months of the date of enactment of this act;

(2) Update as necessary the standardized written summary;

(3) Distribute the standardized written summary to each hospital, clinic, and physician's office and any other facility that performs breast implants; and

(4) Provide the physician inserting the breast implant with a statement to be signed by the patient acknowledging receipt of the standardized written summary.

Every maternity patient, at the time of pre-admission, shall receive complete information from an admitting hospital on its annual rate of primary caesarian sections, annual rate of repeat caesarian sections, annual rate of total caesarian sections, annual percentage of women who have had a caesarian section who have had a subsequent successful vaginal birth, annual percentage of deliveries in birthing rooms and labor-delivery-recovery or labor-delivery-recovery-postpartum rooms, annual percentage of deliveries by certified nurse-midwives, annual percentage which were continuously externally monitored only, annual percentage which were continuously internally monitored only, annual percentage which were monitored both internally and externally, annual percentages utilizing intravenous, inductions, augmentation, forceps, episiotomies, spinals, epidurals and general anesthesia, and its annual percentage of women breast-feeding upon discharge from said hospital.

Every facility shall require all persons who provide care to victims of sexual assault to be provided with medically and factually accurate written information prepared by the commissioner about emergency contraception. Every female rape victim of childbearing age who presents at a facility after a rape shall promptly be provided with medically and factually accurate written information prepared by the commissioner about emergency contraception. Facilities that provide emergency care shall promptly offer emergency contraception at the facility to each female rape victim of childbearing age, and shall initiate emergency contraception upon her request. For each facility initiating emergency contraception, the administrator, manager or other person in charge thereof shall annually report to the department of public health the number of times emergency contraception is administered to victims of rape under this section. Reports made pursuant to this section shall not identify any individual patient, shall be confidential and shall not be public records. The department of public health shall promulgate regulations to carry out this annual reporting requirement.

A facility shall require all persons, including students, who examine, observe or treat a patient or resident of such facility to wear an identification badge which readily discloses the first name, licensure status, if any, and staff position of the person so examining, observing or treating a patient or resident; provided, however, that for the purposes of this paragraph, the word facility shall not include a community day and residential setting licensed or operated by the department of mental retardation.

Any person whose rights under this section are violated may bring, in addition to any other action allowed by law or regulation, a civil action.

No provision of this section relating to confidentiality of records shall be construed to prevent any third party reimburser from inspecting and copying, in the ordinary course of determining eligibility for or entitlement to benefits, any and all records relating to diagnosis, treatment, or other services provided to any person, including a minor or incompetent, for which coverage, benefit or reimbursement is claimed, so long as the policy or certificate under which the claim is made provides that such access to such records is permitted. No provision of this section relating to confidentiality of records shall be construed to prevent access to any such records in connection with any peer review or utilization review procedures applied and implemented in good faith.

No provision herein shall apply to any institution operated by and for persons who rely exclusively upon treatment by spiritual means through prayer for healing, in accordance with the creed or tenets of a church or religious denomination, or patients whose religious beliefs limit the forms and qualities of treatment to which they may submit.

No provision herein shall be construed as limiting any other right or remedies previously existing at law.

M.G.L.A. 111 s 70E

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.