Sued? HIPAA still rules

December 16, 2005

Malpractice Consult

Q. I've been named as a defendant in a "shotgun" malpractice suit that includes my hospital and several other physicians. Their attorneys have requested copies of my records for the plaintiff. Am I allowed to share my records or discuss the case with these co-defendants or their attorneys?

A. No. As a general rule, medical records are confidential, and protected by HIPAA. They may not be released to your co-defendants without a HIPAA-compliant authorization from the patient, or a HIPAA-compliant subpoena.

As the case progresses, the co-defendants will be able to obtain the records legally through the normal process of discovery, or by a court order at a pretrial conference. If the plaintiff has any objections to releasing such information, her attorney could make them at that time.

Q. The attorney representing a patient who's suing me and two other doctors just called to "clarify" something in my records. (I'd sent him copies of my charts after the patient signed an authorized release.) Should I speak to this lawyer? How about similar questions from my co-defendants' counsel?

A. The answer to both questions is "No." The patient's authorization applies only to her records, not to any other information or opinions you might have regarding the case.

In addition to the risk of a HIPAA violation, discussing the case with the plaintiff's attorney in an "off-the-cuff" conversation can be dangerous. He may try to get you to elaborate on your notes, or elicit an opinion that could hurt your defense. Even a co-defendant's attorney might try to ferret out information that could help his client, but damage your position.

At this stage of a case, these calls from the attorneys are typically part of a "fishing expedition." You're not obligated to provide them with any facts that aren't in your records. The proper time for them to ask such questions is during discovery or in your deposition, when the attorney assigned by your malpractice carrier can protect you. Until then, he's the only one you should discuss the case with.

The author, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues.

This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com
.