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Can a Defendant legally disclose a Plaintiff's medical records to unrelated non parties and non witnesses without consent?

Tucson, AZ |

If a Plaintiff is suing a Defendant for severe emotional distress, and signs a HIPAA release for his psychiatric records so that Defendants can obtain them, can the Defendants then share Plaintiff's psychiatric medical records with unrelated non-parties/non-witnesses/non-medical experts of which have nothing to do with the lawsuit? Or would that be a violation of HIPAA and/or doctor/patient privilege?

Does a psychiatric patient lose their right to medical privacy when involved in a lawsuit as it would concern a Defendant disclosing and/or divulging Plaintiff's medical records to other people who have nothing to do with the lawsuit? Or in other words, because Plaintiff signed a HIPAA release so that Defendants could obtain the records, does that permit Defendant/Defendant's attorneys to divulge that information to 3rd parties?

Attorney Answers 3

Posted

Dear sir or ma'am,

Your question does not have a black-and-white answer. Generally speaking, when you are suing for emotional distress, you place your emotional condition at issue and the Defendant can obtain your medical records. The doctor-patient privilege, at least surrounding your emotional or psychiatric care, would be impliedly waived if you wished to proceed with your claim.

Unless you proceed to trial or some other public hearing, your psychiatric records should not become public knowledge, and should not be given by the Defendant to persons who have no role whatsoever in the case. If the Defendant has an attorney, it is unlikely such dissemination would happen, as there are ethical rules which prevent him from "us[ing] means that have no substantial purpose other than to embarrass, delay, or burden any other person." (Arizona Ethical Rule 4.4).

There are discovery rules which also prohibit this type of conduct. For example, Rule 26(f) would sanction a party or attorney who has engaged in "unreasonable, groundless, abusive, or obstructionist conduct" with their discovery methods. An attorney would likely see no reasonable purpose to disclose your records publicly, other than to embarrass or harass you. If you are dealing with an unrepresented Defendant, this may be a different story.

If you believe your records may be inappropriately disseminated, you can file for a protective order, pursuant to Rule 26(c), Arizona Rules of Civil Procedure (Superior Court), or Rule 122(d) of the Justice Court Rules of Procedure. In that motion, you would explain your concerns, and ask that dissemination of records be limited only to those who have a legitimate function or purpose in the case. A Defendant might look bad opposing a motion that prohibits the public disclosure of sensitive records, and would be sanctioned if you got the order and he violated it.

So you are aware, the persons who generally see medical records are claim handlers, adjusters, attorneys, parties, consulting witnesses (whose identities will not be disclosed), fact witnesses, independent medical examiners pursuant to Civil Procedure Rules 26(a) and 35(a), or others who have some logical reason for viewing them or role to play in the case.

I am providing some links to the rules I referenced in this response. I wish you the best with your matter and hope this helps.

Jules

Arizona Rules of Civil Procedure (Superior Court):
http://government.westlaw.com/linkedslice/default.asp?SP=AZR-1000

Attorney Rules of Professional Conduct:
http://www.azbar.org/ethics/rulesofprofessionalconduct

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Posted

When a civil action is filed for personal injuries or emotional distress, one's pre accident physical and emotional status are in fact at issue. But limits exist. Your question implies specific concerns that you should review with an experienced personal injury attorney who has been down this road before.

Insurance defense attorneys do share records with "independent" medical examiners and records reviewers. However, again there are limits.

Finally, in cases like this an attorney should not allow a client to sign a "carte blanch" unlimited authorization. The Health Insurance Portability and Accountability Act describes basic rules for transfer of medical records but does not give a private cause of action. State privacy laws, however, may. Here's more on HIPAA: [Blue-Link-Below]

Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only. Actual legal advice can only be given by an attorney licensed in your jurisdiction, thoroughly familiar with the area of the law in which your concern lies. This creates no attorney-client relationship.

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Asker

Posted

Thanks for the response and information on HIPAA, it is very helpful. Other than being able to share a Plaintiff's medical records with other medical examiners/medical experts, are Defendants allowed to make informal phone calls to 3rd parties such as Plaintiff's relatives/friends (non witnesses/non-experts) to question them about Plaintiff's mental status based on information contained on the psychiatric records, or do you think that would be an invasion of Plaintiff's medical privacy?

Andrew Daniel Myers

Andrew Daniel Myers

Posted

I am fairly certain that this is the second posting that I have seen on this. AVVO is a great attorney marketing and general information site. But, at this point I must tell you that you need to obtain actual advice by seeking an office consultation with an attorney in your jurisdiction experienced in this area of the law. It is not appropriate to get into detailed analysis in this format. I wish you the best.

Posted

Yes, but your lawyer can file motions to limit it

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