Most people are familiar with HIPAA, the Health Insurance Portability and Accountability Act, which is a series of laws meant to protect the confidentiality of a person’s protected health information. This includes a person’s medical records, treatment notes, and other documents pertaining to a person’s medical background. Essentially, HIPAA affords people a security blanket to prevent the disclosure of these protected medical records.
However, in a personal injury lawsuit such as a medical malpractice case, a plaintiff (the individual who brings the lawsuit against another party) puts his or her health and medical condition in question. By doing this, the plaintiff waives his or her HIPAA protections because he or she has put her health in contention.
Because of this, it means that the plaintiff in a New York medical malpractice lawsuit does not have all of the HIPAA protections that a normal person would have. Thus, all of the medical records related to the condition in question which could tend to prove or disprove the plaintiff’s claim are required to be given to the other party or parties involved in the lawsuit. Hence, this means HIPAA protections do not apply.
However, this waiver is ONLY for medical conditions and records related to the lawsuit. For instance, if a plaintiff had a botched knee surgery, all prior orthopedic records relating to the plaintiff’s leg—meaning foot, knee, hip and all in between—are required to be exchanged; HIPAA does not apply. A plaintiff’s general medical record is also waived by HIPAA, this includes primary care records such as a person’s regular checkups. Any records of arthritis or treatment for arthritis would be disclosed to the other parties, as well as any physical therapy records for leg injuries.
But how far back does a plaintiff had to provide his or her related medical records? The answer is as long as available. Thus, if an adult plaintiff had broken his or her leg as a toddler, these medical records would be disclosed to the other party. That is, if they are still available because most medical providers will not keep records for more than necessary which may be as short as 7 years.
The reason for this is that a plaintiff’s medical malpractice case needs to be proven with the medical records available. Prior injuries or pre-existing injuries can take away from the claim, making it not entirely caused by the healthcare professional’s malpractice. This is important and thus why HIPAA is waived.
However, it should be noted that this does not mean there are no HIPAA rights. If a defendant tries to get a plaintiff’s unrelated medical records, such as dental records or OB-GYN records for a knee injury case, that will likely be protected by HIPAA still. It is only related medical conditions which apply.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.