Courts in 2 states rule on reach of HIPAA in medical liability cases

As HIPAA continues to raise hurdles for defendants in medical liability cases, courts in Georgia and Michigan addressed the role of the statute.

The courts interpreted to what extent, if any, the Health Insurance Portability and Accountability Act prevents a defendant physician's attorney from informally interviewing a plaintiff's prior or subsequent treating doctor in the course of litigation. The plaintiffs in the two cases sought to prevent any discussions regarding their medical histories, saying that would violate the federal privacy statute.

In a Nov. 3 ruling, the Georgia Supreme Court found that HIPAA preempted a state law allowing such oral communications without first notifying the patient. Justices unanimously said the federal regulation "affords patients more control over their medical records," and defendants must comply with the stronger privacy regulations. That means they may have those discussions, but only after obtaining patient authorization, a court order or other legal instruction.

The defendant physician in the case is asking the high court to reconsider its decision.

Protection or sword?

"What this comes down to is a fairness issue," said Donald Palmisano Jr., general counsel to the Medical Assn. of Georgia. The organization filed a friend-of-the-court brief in the case. Rather than invoking HIPAA to protect patients' privacy, "plaintiffs are using HIPAA as a sword to keep the defense from accessing crucial evidence in a claim," while plaintiffs have unfettered access to their treating physicians, Palmisano said.

While HIPAA affords patients certain confidentiality, it was not intended to interfere with judicial procedures, Palmisano said. Such procedures were left up to state law. In Georgia, as in many states, plaintiffs waive any privacy rights related to their medical conditions at issue in a case, he noted.

Henry D. Green Jr., the defense attorney in the case, said the state law also satisfied the federal requirements by giving plaintiffs a chance to object to any requests. Absent a dispute, the treating doctor would be authorized to release the information.

But the high court concluded that wasn't enough, saying patients' privacy rights must come first. Georgia law "facilitates and streamlines the litigation process; it was not designed to protect a patient's private health information in the course of oral communication," the opinion states.

An attorney for the plaintiff did not return calls for comment.

Sorting out the confusion

In a similar case in Michigan, the defendant physician had obtained a protective order, as outlined under the federal HIPAA statute, to speak with the plaintiff's other treating doctors.

But the plaintiff argued in court documents that the written medical records were sufficient. If more information were needed, the defendant could formally depose the plaintiff's physicians, the plaintiff said.

The Court of Appeals of Michigan unanimously disagreed in a Nov. 18 decision. While HIPAA supersedes state law with more stringent privacy protections -- which the defendant followed -- it does not forbid informal conversations. Those discussions can help keep litigation costs down and allow the parties to investigate what information could be useful at trial, judges said.

The plaintiff is appealing the decision to the state Supreme Court, but her attorney declined to comment further. The high court will decide whether to accept the case.

When it comes to litigation, "there is still a lot of confusion about what HIPAA covers and doesn't cover," forcing the issue into the courts, said Daniel J. Schulte, counsel to the Michigan State Medical Society. That group was not involved in the case.

Federal vs. state rules

The federal privacy regulations typically override weaker state laws that fail to give plaintiffs adequate notice and opportunity to contest disclosures about their private health information, whether orally or in writing, Schulte said. Whether such data are relevant to a lawsuit, however, ultimately would be up to a court to decide.

HIPAA is less clear on verbal communications, often prompting plaintiffs to raise the issue, said Julie McCann O'Connor, who represented the defendant in the Michigan case. Nevertheless, the recent decision clarifies that such information is not off-limits to the defense.

That may require the extra step of pursuing a court order. But the physician or other covered entity in possession of a patient's protected health records ultimately is the one responsible for maintaining that confidentiality, McCann O'Connor noted.

As a result, defendants must take reasonable steps to ensure compliance with HIPAA to overcome any potential reluctance by the plaintiff's physician to discuss the patient's treatment.