HIPAA’s Impact on Litigation
HIPAA’s Impact on Litigation
J. Rudy Austin
Robyn Smith Ellis
Congress enacted the Privacy Standards of the Health Insurance Portability and Accountability Act (HIPAA) to protect patients from unauthorized disclosure of their medical records. HIPAA regulations require healthcare providers to establish policies and procedures that comply with the Privacy Standards. One of the many questions raised by HIPAA is the effect of the Privacy Standards on statutes in many states, including Virginia, that allow lawyers defending claims or lawsuits brought by patients against their own physicians or others, under certain proscribed circumstances, to have ex parte (without the patient or the patient’s lawyer being present) conversations with the patient’s treating physicians. One United States district court has now answered this question.
A federal court in Maryland has ruled that in the absence of a court order, ex parte conversations with treating physicians are barred by the HIPAA rules, even when a state law, in this case a Maryland statute, specifically authorized such contact. In Law v. Zuckerman, 307 F. Supp. 2d 705 (D. Md. 2004), the defendant’s lawyer conducted ex parte discussions with treating doctors in a medical malpractice case. The patient sought a declaration from the court that such contacts were in violation of HIPAA. The court held that the lawyer’s contacts with the doctors violated HIPAA because the state statute specifically permitting such conversations was preempted by HIPAA. The court ruled preemption was appropriate because the Maryland statute was less stringent in terms of protecting the privacy of the patient’s medical records than the HIPAA regulations. Although a violation of HIPAA may result in civil penalties imposed by the Secretary of the Department of Health and Human Services, HIPAA does not direct a court as to how to impose penalties for a violation during the course of discovery or trial. The court, in its discretion under rules of court procedure, did not sanction the lawyer because he had acted in good faith under the mistaken belief that state law permitted his ex parte discussions.
Virginia’s statute regarding ex parte contacts with treating physicians by lawyers, Va. Code º 8.01-399 is different from Maryland’s law, and very narrowly circumscribes the opportunities for counsel to have such ex parte contacts with treating physicians. It is our view that strict compliance with the Virginia statute is in accord with the HIPAA requirements, and contacts made pursuant to Virginia law should not be found to violate HIPAA. In March 2004, the Virginia House of Delegates and Senate directed the Joint Commission on Health Care to study how Virginia medical records privacy laws can be coordinated with HIPAA and the degree to which the laws should be made consistent. Hopefully this study will lead to some clarification as to which Virginia laws have been preempted by HIPAA.
For more information on HIPAA or how Virginia law applies in this context, please contact Rudy Austin at (540) 983-9401.