HIPAA Bars Defense Attorney From Interviewing Doctors in Medical Malpractice Action

A defense attorney has violated rules of the Health Insurance Portability and Accountability Act (HIPAA), ruled the Georgia Supreme Court. The defense attorney had ex parte communications with the plaintiff's prior treating physician. The defense lawyer informally asked about the patient's medical condition after getting his medical records from three previous doctors. The doctor has been sued for malpractice.

When a plaintiff puts his or her medical condition at issue, the defense attorney can contact treating physicians about the plaintiff's condition. The court agreed with the plaintiff in this case when he argued that the defense attorney violated HIPAA's provisions requiring notice and consent from the patient before the medical records are disclosed.

The Supreme Court of Georgia stated as follows in Moreland v. Austin:

"[W}e find that HIPAA 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," the court said.