For most lawyers and physicians, “HIPAA-compliant” authorizations have become part of the routine when a patient’s medical records must be disclosed to the parties to a lawsuit. But the North Carolina Court of Appeals has taken that process out of the routine, and placed it front and center for physicians, according to injuryboard.com.
In that state, a woman sued one of her doctors for failing to diagnose breast cancer, and lost. However, she apparently discovered that the radiologist who had read her mammogram films released them to the defendant-doctor’s expert witness in the malpractice action, without authorization of any kind. She proceeded to bring a medical malpractice action against the radiologist, based solely on the failure to obtain proper authorization before disclosing the records. And, according to Brent Adams of injuryboard.com , the North Carolina Court of Appeals has upheld the claim.
Unfortunately, there is no further detail explaining the circumstances behind the Court’s upholding the claim. But the hard line taken by the North Carolina Court of Appeals should serve as a clear warning to physicians who may be tempted to share patient records without proper authorization from the patient. By extension, it should also serve as a warning to all of us lawyers who must obtain and review medical records as part of our regular practice. Like it or not, HIPAA must be obeyed, and we New Yorkers are too smart to need a New York lawsuit based on unauthorized disclosure of medical records to keep us in line with the statute.
Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit. Mr. Barovick teaches trial advocacy at Cardozo School of Law’s annual Intensive Trial Advocacy Program, has written and lectured for NYSTLA’s Decisions Continuing Legal Education (CLE) program, and is the creator and principal author of The New York Medical Malpractice Law Blog. Through the City Bar’s Medical Malpractice Committee, he has been active in the writing and presentation of related CLE programs for several years.