One hot button issue in Maryland medical malpractice cases today is the circumstances under which defense lawyers can speak to Plaintiff’s treating doctor. For years, this was not an issue. If a defense lawyer wanted to talk to a treating doctor, she would just pick up the phone and call. This was a powerful tool for malpractice defense lawyers because (1) you always want to know what a treating doctor — or any witness for that matter — is going to say before the doctor testifies, and (2) it gives the defense lawyer a chance to participate in shaping the doctor’s testimony.
HIPAA changed all of this in 1996. HIPAA requires that a doctor “may disclose protected health information in the course of any judicial or administrative proceeding [i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i).
So that settles it, right? In most states, yes. If this is current, 38 states prohibit ex parte conduct and another six permit informal interviews with significant restrictions.
Why This Fight Continues in Maryland
Yet in Maryland, the battle still rages. Defense lawyers argue that under Maryland law once a patient chooses to place his or her medical care and treatment at issue in a civil action filed against a health care provider, all health care providers shall disclose all information in medical records and/or health related information to another health care provider’s legal counsel. Specifically, Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications. Actually, I think the statute provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h).
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