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12/12/2017
NMGMA Monthly Meeting

ExPartComm
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Ex Parte Communications between Treating Physician and Attorney for another Treating Physician. 

 

            Pursuant to HIPAA, physicians are permitted to disclose “protected health information” to their attorneys (who are their business associates) for purposes of their own healthcare operations.  That provision allows physicians sued by patients for malpractice to provide their attorneys with the information needed to prepare and present a defense.  HIPAA does not allow treating physicians in one practice to disclose “protected health information” to attorneys for a treating physician in another practice unless a subpoena or an order of a court permits that disclosure.  Ordinarily, subpoenas or orders are a part of a court ordered deposition or trial at which the patients or their attorneys are present, so the need to protect health information is lessened. 

 

            HIPAA allows members of a group practice to transmit protected health information concerning a patient to business associates of the practice, including attorneys representing the other physicians in the group practice for the practice’s healthcare operations.  Healthcare operations includes representation in lawsuits.  A subpoena or court order is not required for this disclosure. Thus, HIPAA permits the attorney for a physician to meet with the physicians in that same practice and obtain protected health information.

 

            In Tennessee, the Tennessee Supreme Court opined that an implied covenant of confidentiality exists between the treating physician and his or her patient.  Like HIPAA, this implied covenant of confidentiality absolutely prohibits an attorney for a treating physician from meeting with another treating physician unless the patient or the patient’s attorney is present.  Like HIPAA, the court assumes that the patient’s interests are protected when the patient is present. 

 

            Does the implied covenant of confidentiality prohibit a physician employed in a group practice from meeting with the attorneys representing another employee of the practice who has been sued for malpractice without the patient being present?  That was the question in Hall v. Crenshaw, W2013-00662-COA-R9-CV (Tenn. Ct. App. July 18, 2014).      The court of appeals held that the implied covenant of confidentiality does not prohibit a physician in a group practice from meeting with attorneys representing another employee physician of the practice.   The court of appeals reasoned that a corporation can only function through its agents and employees.  Under state law, all knowledge of the corporation’s employees is imputed to the corporation.  Therefore, the court concluded, the covenant of the corporation already possesses the information.  Conversely, the corporation, through its employees, can  discuss a patient’s medical record and history with the attorneys representing the corporation and its employees.  

 

            1.        What if the treating physicians are not employees of the corporation but are owners of the practice (e.g., shareholders,    members, or partners)?

 

            2.        What if the entity is not sued – only the individual physician is sued?

 

The court of appeals did not provide the answer to these questions.  In fact, the court specifically declined to address the shareholder issue.