Physician-patient privilege, litigation waiver and HPPA
When an injured person sues, his or her right of privacy in their medical treatment becomes complicated. Here are the basic issues in Michigan.
First, as most people know, all communications with a medical care provider are private and "privileged". Your doctor--or his receptionist--cannot tell the newspaper reporter that he has been treating you for a carbuncle on your posterior. This privilege is not absolute, however. For example, if you confess to a psychiatrist that you are abusing your kids, the psychiatrist is obligated to report that fact; if a school nurse sees evidence of abuse of a child, the nurse is required by law to let the authorities know. The privilege does not protect certain kinds of information--and particularly information that would endanger innocent third-parties.
One of the exceptions to that basic privilege under state law is litigation. Michigan has a law that waives the privilege in the event that a person files a personal injury claim. The adverse party would be entitled to unfettered access to all of the victim's medical records in order to allow him or her to defend the injury claim--if the Michigan statute were the only applicable law. While the adverse party has a right to this information, he or she must still protect the victim's right of privacy in the records and cannot, for example, put the anesthesiologist's drug screening report on a local billboard.
Prior to the adoption of Federal HPPA rules, victims in Michigan were routinely asked to execute blanket medical authorizations, giving unlimited access to their adversary: the defense attorney would use these authorizations to demand complete medical records at the outset of litigation and might also use them to approach health care providers for an undisclosed, private meeting. Sometimes this meeting was an honest attempt to assess the true impact of the victim's injury and his or her prognosis. On other occasions, it was abused by overzealous insurance representatives in an attempt to mislead the treater or poison the treatment relationship. In any event, the Defendant's right to engage in these meetings, without notice to the patient/victim, was completely unfettered under Michigan law.
When the Federal government adopted the HPPA regulatory scheme, though, the state rules waiving the doctor/patient privilege were "trumped" by federal regulations. Under these new rules, the insurance people defending an injury claim still have the right to secure complete copies of medical records and to interrogate doctors. The only difference is that there is no such thing as a "blanket" one-time waiver enabling the insurance people to approach health care providers at any time without notice to the victim. The interaction of HPPA and state law is discussed in Belote v. Strange, a 2005 Court of Appeals decision. It is also discussed in an earlier weblog entry under "Practical Considerations".
The HPPA protections take precedence over state rules and require that a victim receive notice of any breach of privacy: while the victim cannot refuse access and still maintain an injury suit, he or she does retain that final option of denial of access and dismissal of the claim--and victim and attorney are at least informed of the fact that ex parte ['private'] communication may soon happen between doctor and defendant. In this manner, if the patient detects a sudden "chilling" of the relationship, he or she may at least have an opportunity to decipher what went wrong---and what the doctor was told that may be false or only half-true. Furthermore, in this context of full and timely disclosure, many treating physicians will refuse to cooperate in "ex parte" meetings--which is the physician's right--and all of the information exchange may happen in an open and above-board manner.
At the close of litigation, medical records should be shredded or returned to the victim in order to protect privacy. The victim's attorney may retain copies of certain records for a finite period in order to facilitate future inquiries by the client.
Where there is an on-going third-party payment issue, as with no fault Personal Injury Protection coverage, other complications are presented. While we usually recommend that clients sign authorizations only if they are reasonably limited in duration, directed only to a particular provider, and require an original signature, some compromise of these recommendations may be necessary in order to create a "survivable" relationship with the PIP adjuster.