Ask Me Help Desk - Hippa and ethics violation

The situation is a divorce.

The parties involved are both Drs. I will refer to them as Dr A and B

Dr A and B are separated.

Dr. As lawyer wants to obtain Dr. Bs medical records in order to gain advantage in custody.
Dr. B and Dr. Bs lawyer refuse this. Attorney for Dr A. states that they do not want to jump though hippa law hoops.

Dr. B has taken many months to compile medical records for a visit to a new internist that wants to review them.

Dr. Bs medical records are at his previous home and requests these to take to his Drs. visit.
Dr. A states that medical records had been given to her attorney 4 weeks prior and thought that they would have been forwarded to Dr Bs. Attorney.

It is found that Dr. Bs attorney had never done this but instead reviewed all the records and made copies.

The Dr As attorney would not return calls concerning return of the records. Dr A. finally went to her attorneys office and was instructed to sneak them back into Drs. Bs practice.
Dr. A was caught by Dr Bs staff doing this. Some of the records appear to be missing Dr. As lawyer refuses to return calls regarding this.

Did Dr. As attorney violate attorney ethics? I know it is not against the law to ask for the records but it this attorney knew that it would get her client into trouble.

Did Dr A violate Hippa? Most of the records were not from her examinations.

This did release personal information without Dr. As consent.

It was suggested that Dr. A

1. File a grievance with the State Bar association against the attorney
2. File a hippa violation against Dr. A
3. Possible sue one or both parties
4. Request that the attorney return missing records and shred any copies in her possession.

Anyone wish to comment on this?

Thanks

I'm not sure I follow all this. If the records were in the home occupied by Dr A they could have been considered part of the marital property. This would make HIPAA inapplicable. It would make Dr B foolish for leaving the records in such a place.

Even without that, I'm not sure there is a HIPAA violation here, since Dr A was not Dr B's caregiver.

I'm also not sure Dr A's attorney violated anything since they have a legal right to the records due to the pending case.

I say just let the judge hearing the case decide.

Dr A had treated Dr. B for some conditions in the file. The file was at the home while they were living together but not retrievable after separation and PPO restrictions.

I believe Hippa would be the party to pass judgment against Dr. A. The attorney is not bound by hippa. The proper and ethical way to obtain medical records is via court subpoena and a hippa release. In both these conditions the plaintiff is notified.

Even if they were subpoenaed the defendant will have a choice. Agree to the custody requests would nullify any need to request medical records. The request for records is an attempt to gain custody or make the custody case stronger.

Making Dr A look foolish or not is immaterial.

Quote:

Originally Posted by ScottGem

I'm not sure I follow all this. If the records were in the home occupied by Dr A they could have been considered part of the marital property. This would make HIPAA inapplicable. It would make Dr B foolish for leaving the records in such a place.

Even without that, I'm not sure there is a HIPAA violation here, since Dr A was not Dr B's caregiver.

I'm also not sure Dr A's attorney violated anything since they have a legal right to the records due to the pending case.

I say just let the judge hearing the case decide.

The fact that DR A provided some of the treatment may have a bearing. But I still go back to the fact that a subpeona for the records could be obtained.

However, if DR B wants to pursue then file a complaint and see what happens.

Exactly, a subpoena should have been filed BEFORE and not after. This alerts the defendant that someone wants the records. It is up to the Judge to grant the subpoena. The subpoena is the proper way to go about this and not through the back door.

Quote:

Originally Posted by ScottGem

The fact that DR A provided some of the treatment may have a bearing. But I still go back to the fact that a subpeona for the records could be obtained.

However, if DR B wants to pursue then file a complaint and see what happens.