HIPAA:


The Defense Ex Parte Party May Be Over by J. Mitchell Lambros


J. Mitchell Lambros (Lambros & Lambros, Cockeysville) received his J.D. from Duke University School of Law and is an Officer on MTLA’s Board of Governors serving as the President-Elect. He is a member of MTLA’s President’s Club as an Eagle and is a member of the Executive Committee. Mr. Lambros is Chair of the Legislative Committee, a trustee of the MTLA-PAC, and served as the Editor-in- Chief for Trial Reporter (1997-1999). His practice concentrates in personal injury, medical malpractice, workers’ compensation and social security disability.


HIPAA: The Defense Ex Parte Party May be Over Final HIPAA, the Health Insurance


Portability and Accountability Act of 1996 Pub. L. No. 104-191, 110 Stat. 1936 (1996), rules went into effect April 14, 2003. There appears to be a good argument that these regulations bar de- fense attorneys from meeting with treating doctors on an ex parte basis unless a case is pending and then only with prior no- tice to the patient.


I. Current Maryland Law and Practice This practice of defense counsel seek- ing out ex parte meetings with treating physicians is common in medical mal- practice cases. As a result, plaintiffs in


medical malpractice cases routinely are seeing their own treating doctors turning up as experts against them on defense ex- pert disclosures.


This result hardly


comports with most people’s expectations of the physician patient relationship. Currently, there are two statutes and one case being utilized by defense coun- sel to justify seeking meetings with treating physicians. Maryland Health General Annotated Code §4-305(b)(1)(iii) provides that a healthcare provider “may” disclose a medi- cal record without authorization from the patient to any provider’s insurer or legal counsel for the purpose of handling an “actual or potential claim.” Section 4- 305(a) specifically states, “this section may


not be construed to impose an obligation on a healthcare provider to disclose a medical record.” As a result, it gives the healthcare provider the option, but not the obligation, to meet with representa- tives for the defendant. In contrast, Health General §4- 305(b)(3) is mandatory and provides as follows: (b) Permitted disclosures. - A healthcare provider shall disclose a medical record without the authoriza- tion of a person in interest: ….


(3) to a healthcare provider or


the provider’s insurer or legal counsel, all information in a medical record re- lating to a patient or recipient’s health, healthcare or treatment which forms the basis for the issues of a claim in a civil action initiated by the patient, recipient, or person in interest.


While this is characterized in its title as a “permitted disclosure,” the terms of §4- 306(b)(3) are mandatory. Unlike §4-305(b)(1)(iii), §4-306(b)(3) only ap- plies once suit has been filed. Under either section, a face-to-face meeting with the treating physician ap- pears to be a stretch of the concept of “medical record” which is defined in Maryland Health General Annotated Code §4-301(g)(1):


“Medical record” means any oral, writ- ten, or other transmission in any form or medium of information that (i) is entered in the record of a pa- tient or recipient; (ii) identifies or can readily be associ- ated with the identity of a patient or recipient; (iii) and relates to the health care of the patient or recipient.”


Outside of the medical records statu-


tory provisions, which are used by defense counsel in medical malpractice cases, the Court of Special Appeals in Butler-Tulio


20 Trial Reporter Spring 2003


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