HIPAA, Medical Malpractice, And Your Medical Records

Almost every person knows about HIPAA. Whenever we go to any kind of healthcare provider we are required to sign several HIPAA-compliant forms and disclosures. Most of us do not know what we are signing, only that they are required by federal law.

Indeed, HIPAA is a vast matrix of federal laws and regulations designed to guard against disclosure of our protected health information. It recognizes that this information is sacred and is not to be disclosed—intentionally or unintentionally. There are seep penalties for doing so too, which further protects us.

So does a victim of medical malpractice have to disclose his or her medical records to the other parties? And further, aren’t those records available by the public at large?
Yes and yes.

While there is a right to HIPAA protections, New York courts have found that when a victim of medical malpractice commences a lawsuit, he or she is putting his or her health and body in contention. This functions as a WAIVER of the HIPAA protections. In fact, this applies for ALL personal injuries lawsuits relating to physical bodily harm such as slip and falls, car accidents, workers’ compensation, and of course medical malpractice.

Thus, because the plaintiff places his or her health in contention, there must be access to these records for the other side to review and assess your claims. This means, unfortunately, that most of your medical records are exposed to the public because court documents must be filed with the county clerk’s office. All court decisions will be a matter of public record as well.

Luckily, there are some protections. If a plaintiff suffers a botched foot surgery, all of the records relating to or even possibly relating to the foot surgery will be up for inspection. This means HIPAA is waived for all of those records. However, this does NOT mean that a plaintiff’s dental records, OB/GYN records, or other irrelevant records are up for public inspection—despite some defense attorneys requesting them. That is right, there are cases where a back surgery as lead to fights over a patient’s OB/GYN records and dental records right here in the capital region.

Some plaintiff’s attorneys will just concede and give up your HIPAA rights, but not at my law firm. Your rights are important and shouldn’t they be protected? That is, after all, why you are commencing a medical malpractice action; your rights were violated by a negligent healthcare provider.

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 jfisher@fishermalpracticelaw.com. 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.