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Jumping Through Hoops: Discovery of Records under HIPAA

By Lori G. Cohen, Esq. and Christiana P. Callahan, Esq.

When medical malpractice defense counsel first heard of the new privacy regulations issued by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act of 1996 (the HIPAA privacy regulations), most probably thought that these detailed and complicated laws would affect only their regulatory health care colleagues. How great an impact the HIPAA privacy regulations will have on medical malpractice litigation, in general, is yet to be seen, but it is clear that these regulations have immediately affected discovery of medical records in med-mal cases.

According to the statutory or common law of most states, when a plaintiff files a suit that puts his or her medical or health condition at issue, the plaintiff waives the right to privacy, to at least some extent, in his or her medical records. Under the HIPAA privacy regulations that became enforceable April 14, 2003, this is not necessarily the case. Because HIPAA provides strict privacy protection for a patient's medical information – even if the patient filed a lawsuit with his or her health at issue – discovery of the patient's medical records now requires medical malpractice defense counsel to “jump through additional hoops.” However, this should not prevent the efficient discovery of information needed to defend a medical malpractice suit. Counsel must be ever vigilant and proactive to ensure that these new requirements do not impede a solid, effective defense of these cases.

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