v. Scroggins, 139 Md. App. 122, 774 A.2d 1209, cert. den. 366 Md. 247, 783 A.2d 221 (2001), specifically held that there is no physician patient privilege in Mary- land. The opinion’s rationale is murky, but its holding arguably creates an open season for defense counsel in all cases, and not just in medical malpractice cases.
II. HIPAA A. Background The HIPAA privacy regulations alter the landscape of medical privacy dramati- cally.
45 CFR §164.501 defines
“protected health information” as indi- vidually identifiable health information that is transmitted by electronic media, or transmitted or maintained in any other form or media. “Individually identifiable health information”, in turn, is defined as follows: Individually identifiable health infor- mation is information that is a subset of health information, including de- mographic information collected from an individual, and; (1) is created or received by health care provider, health plan, employer, or health care clearing house; and (2) relates to the past, present, or future physical or mental health condition of an individual; or
the past, present, or future payment for the provision of health care to an individual; and (i) that identifies the individual; or (ii) with respect to which there is a reasonable basis to believe that the in- formation can be used to identify the individual.
This is a very broad definition indeed and certainly would appear to encompass the type of one-on-one face-to-face meetings that defense counsel are fond of at present. 45 CFR §164.502 lists the circum- stances under which protected health information may and/or shall be dis- closed. Unless disclosure specifically is permitted, it is not allowed. Disclosure is permitted in accordance with patient consent. The nature of the authorization required is detailed in §164.508. Disclo- sure is permitted without patient consent in accordance with §164.506 and §164.512 as well as other sections. The other sections do not apply to the con- text being considered in this memorandum. The issue thus becomes whether §164.506 and/or §164.512 per- mit ex parte contacts by defense counsel with treating physicians.
B. Section 164.506 Sections 164.506(a) and (c) allow a
covered entity to disclose health informa- tion without patient consent in a number of different circumstances. In the context of the situation of one healthcare provider providing medical information to another healthcare provider in connection with an anticipated or pending malpractice claim, it appears that §164.506(c)(4) is the only potential subsection which might autho- rize such a disclosure. 506(c)(4) provides as follows:
A covered entity may disclose pro- tected health information to another covered entity for health care opera- tions activities of the entity that receives the information, if each en- tity either has or had a relationship with the individual who was the sub- ject of the protected health information being requested, the pro- tected health information pertains to such relationship, and the disclosure is:
i) for a purpose listed in paragraph (1) or (2) of the definition of healthcare operations;
(Continued on page 22)
Spring 2003
Trial Reporter
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