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

By Amy Lynn Sorrel, AMNews staff. Dec. 15, 2008 -- Some experts say the decisions point to ongoing confusion over the federal privacy statute in legal proceedings. 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. 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.