Personal Injury Law

HIPAA Bars Insurance Defense Lawyers From Informally Communicating With Injury Victim?s Physicians

As attorneys representing injury victims of automobile accidents, tractor tailor truck accidents and medical malpractice claims we have had many occasions where the insurance company lawyer contacts our client?s own doctor to talk about the case without our knowledge. Fortunately that conduct is now a violation of law.

The Georgia Supreme Court recently heard a case where the plaintiff sued her husband?s doctor for malpractice. After she produced his medical records from three of his previous doctors, the insurance defense lawyer contacted them informally and asked about the man?s medical condition.
Under state law, once a plaintiff puts his or her medical condition at issue, the defense attorney can informally contact the treating physicians about the plaintiff?s medical condition. But the plaintiff argued that these ex parte conversations violated HIPAA?s provisions requiring notice and consent from the patient before the disclosure medical records. The Supreme Court of Georgia Court agreed and has now held that the insurance defense lawyer?s ex parte communications with the plaintiff?s prior to treating physician violated the privacy rules of the Health Insurance Portability and Accountability Act (HIPAA). In it?s decision the court said:

?We find that HIPPA preempts [state ] law with regard to ex parte communications between defense counsel and plaintiff?s prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians...

?HIPAA... prevents a medical provider from disseminating a patient?s medical information, whether orally or in writing, without obtaining a court order or the patient?s express consent. In other words, HIPAA requires a physician to protect a patient?s health information, unless the patient is given reasonable notice and an opportunity to object...

?Thus, in order for defense counsel to informally interview plaintiff?s treating physicians, they must first obtain a valid authorization, or a protective order, or ensure that the patient has been given notice and an opportunity to object to the ex parte contact, all in compliance with the requirements of HIPAA?.

Full post as published by Georgia Injury Lawyer Blog on December 04, 2008 (boomark / email).