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In October, 2007, the Georgia Court of Appeals addressed the issue of whether a malpractice lawsuit defendant’s contact with a plaintiff’s prior treating physicians violates Health Insurance Portability and Accountability Act (HIPAA).
The plaintiff in Austin v. Moreland filed her medical malpractice complaint in 2001 alleging that her husband died because transfusions ordered by the defendant were conducted too quickly. The plaintiff produced her husband’s medical records during the lawsuit and included documents from three cardiologist’s relating to prior treatment.
In 2003, the defendant contacted the cardiologist to discuss the deceased’s cardiovascular status and prognosis. The plaintiff objected, but was overruled by the trial court.
After this adverse ruling the plaintiff dismissed her malpractice suit and re-filed it with a different court. This time, along with the medical malpractice claims, the plaintiff requested that the court prohibit the defendant from speaking with the deceased’s cardiologists. The trial court granted this request resulting in the current appeal.
The Court of Appeals directed the trial court to determine whether the protected health information was disclosed with the plaintiff’s consent before or after the effective date of the HIPAA privacy provisions, April 14, 2003. If it was before, then the defendant was allowed to continue communicating with the cardiologists. If it was after, the trial court was free to restrict the cardiologists’ disclosure of information to the defendant except in accordance with the HIPAA privacy rule and the Georgia Civil Practice Act.
From a practical perspective, the court ruling is that HIPAA does not prevent ex parte communications between malpractice defense counsel and a plaintiff’s treating physicians, provided that a request for medical information has been received and not objected to by the plaintiff. In any case where medical records have been produced without objection by the plaintiff pursuant to a document request, ex parte communications may take place.
