I. INTRODUCTION

Through the efforts of the CVMA, the California legislature recently enacted Senate Bill-490 (SB-490), which was signed by Governor Gray Davis and became effective on January 1, 2000. SB-490 addresses two important privacy issues relating to confidentiality of veterinary and related client records. First, it establishes that veterinary records -- any information relating to the animal, the client owner or the care provided -- are treated as confidential information and, subject to limited, common sense exceptions, the veterinarian is prohibited from disclosing such information to third parties without consent of the client responsible for the animal. Second, it provides that all information obtained from a dog owner collected through mandatory license applications and rabies vaccines is confidential and may not be used, distributed or released by cities and counties, except to ensure compliance with existing law.

Prior to the passage of SB-490, the law surrounding the confidential nature of veterinary medical records was shrouded in uncertainty. Although California law did not regulate the dissemination of information obtained through the rendering of veterinary services, most veterinarians believed that the veterinary records were confidential and could not be disclosed without the client's written consent. Moreover, the client reasonably believed that their animal's veterinary records were confidential in the same manner that their own medical records are kept confidential by their medical doctors. Despite the veterinarian's and client's perceptions regarding the confidential nature of veterinary records, there was no California law regulating the dissemination of information collected through veterinary services.

II. PROVISIONS OF SB-490

A. Confidentiality of Veterinary Records. SB-490 added Section 4857 to the Business and Professions Code which provides that veterinary records are to be treated as confidential information and disclosure is prohibited without the consent of the client responsible for the animal, or as otherwise provided under the law. The pertinent provisions of Section 4857 can be summarized as follows:

1. Veterinarians shall not disclose any information concerning an animal receiving veterinary services, concerning the client responsible for the animal receiving services, or concerning the care provided to the animal, except under any one of the following circumstances:

Upon knowing and informed consent which is given by the client responsible for the animal or any authorized agent of the client, in writing or by electronic transmission, or witnessed oral authorization;

As required to comply with any federal, state, county or city laws or regulations.

2. Nothing in this section is intended to prevent the sharing of veterinary medical information

Between veterinarians or facilities for the purpose of diagnosis or treatment of the animal who is the subject of the medical records; and

Between veterinarians and peace officers, humane society officers or animal control officers who are acting to protect the welfare of the animals.

3. The prohibition against releasing information contained in the veterinary records shall not apply, if the client responsible for an animal has filed or caused to be filed a civil or criminal complaint that places the veterinarian's care and treatment of the animal or the nature and extent of the injuries to the animal at issue, or when the veterinarian is acting to comply with federal, state, county or city laws or regulations.

4. Veterinarians shall be liable in a civil action for any damages caused by the negligent release of confidential information, and also shall be subject to specified criminal penalties for unauthorized disclosures of information obtained in contravention of Section 4857.

B. Confidentiality of Information Collected Through License Applications and Rabies Vaccines. SB-490 amends Section 121690 of the Health and Safety Code by prohibiting cities and counties from using, distributing or releasing information on dogs and their owners (including names, addresses and telephone numbers) collected through mandatory license and vaccination laws. This amendment is designed to prevent confidential personal information from being sold or otherwise released to business organizations who, in turn, will use the information for solicitation purposes.

III. CONCLUSION

Veterinarians have grappled with the issue of confidentiality of veterinary records for several years. The enactment of SB-490 is a comprehensive attempt to provide guidance. The importance of establishing confidentiality requirements for information on clients, animals and treatments contained in veterinary records cannot be overstated and will serve to protect the privacy of clients. Interested parties can get a copy of the new statutory provisions created by SB-490 from the CVMA's internet site at www.cvma.net.

Although Section 4857 seems straightforward, an interesting question has recently been brought to the author's attention regarding its interpretation. The question is whether veter-inarians can outsource the mailing of client reminder cards without being subjected to possible liability under the new law for exposing confidential client information. A narrow construc-tion of the statute could lead to the conclusion that such disclosure violates Section 4857. This is especially so since client information is being used for commercial purposes. On the other hand, even though the outsourcing of a client reminder card mailer is commonly done to cut costs or to effectively market the practice, the primary purpose of the mailer is to promote and protect the health and welfare of the animal and the public. To prevent a veterinarian from contracting with the outsourced company under these circumstances would seem to undermine both the spirit and intent of the legislation. (It should be noted that the application of Section 4857 will likely create other unintended problems. For example, will disclosure of a client's name and address to billing services, collection agencies or companies hired to conduct client service evaluations, which are commonly utilized by veterinarians, constitute a violation of the statute? It would seem that clarification of the narrow exceptions found within Section 4857 should be addressed and remedied by the California legislature through either a preamble added to SB-490 clarifying the legislative intent of the new law or a technical correction amendment to SB-490.)

To err on the side of caution, the author believes that the veterinarian should obtain a written statement from the outsourced company acknowledging that (i) the client information provided by the veterinarian will only be used for the purpose of conducting the specific contracted services and shall not be used for any other purpose or in any other manner, (ii) any unauthorized use of the client information by the outsourced company could give rise to civil and/or criminal penalties, and (iii) the outsourced company agrees to defend, indemnify and hold harmless the veterinarian from any penalties, damages (including any consequential damages) or other losses arising from the unauthorized disclosure or use of the client, animal or treatment information. A sample form of a Confidentiality Agreement is illustrated below for your consideration.

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (this "Agreement") is dated and deemed effective__________ __, 200_, by and between ______________ ("Company") and ______________ (the "Veterinary Clinic").

This Agreement guarantees that Company will only use the client information provided by the Veterinary Clinic for the sole purpose of conducting _______________ (describe services). By this Agreement, Company warrants, covenants and guarantees that it will not sell, rent, lease, disclose or use any portion of the client information provided by the Veterinary Clinic for any other purpose or in any other manner. Company will act solely as an outsourced _______________ (describe services) on behalf of the Veterinary Clinic.

Company understands that the Veterinary Clinic is entrusting Company with confidential business information and will treat your client information as such. Company also understands that any unauthorized disclosure or use of this confidential information could give rise to civil and/or criminal penalties (see, California Business and Professions Code section 4857 attached re civil and criminal penalties) and agrees to defend, indemnify and hold harmless the Veterinary Clinic from any penalties, damages (including any consequential damages) or other losses, including reasonable attorneys fees, that may result from a breach of this Agreement by Company.

COMPANY

By: _________________________
Name:
Title:

VETERINARY CLINIC

By: _________________________
Name:
Title:

NOTE: The foregoing Agreement is intended as a general form and will likely need to be specifically tailored depending on the services provided by the outsourced company. Your legal counsel should be consulted before the use of this Agreement. Should you have any questions regarding this Agreement, Stuart J. Yasgoor, Esq. can be reached at 7911 Herschel Avenue, Suite 310, La Jolla, California 92037 or at (858) 456-6090.