Although workers' compensation matters are exempted from HIPAA, it is a regular practice to have the claimant sign HIPAA releases so that the employer's attorney can review all of the claimant's medical records.  Does this release give the defense attorney the right to re-disclose the records to an expert witness?

Probably so. 45 C.F.R.164.508 (c)(2)(iii) of the Health Insurance Portability and Accountability Act (HIPAA) states that in every HIPAA release, language must be included that puts the patient on notice of, “The potential for information disclosed pursuant to the authorization to be subject to re-disclosure by the recipient and no longer protected by this subpart.”                                                                             

While any HIPAA compliant release should put the claimant on notice that the records may be re-disclosed, there is no harm in clarifying that this means the records will likely be shown to an expert witness.  Including language like, “I understand that once the above information is disclosed, it may be re-disclosed by the recipient and the information may not be protected by federal privacy laws or regulations, including disclosure to expert witnesses who may review the records for litigation purposes,” is probably a good practice.  It will put the claimant on notice that an expert witness will possibly review his records and will help the defense to avoid any allegations that they released records without permission.  The defense should also have the expert witness sign a non-disclosure/confidentiality agreement in regards to the records in order to further protect the plaintiff’s Personal Health Information.

If the client is a covered entity then it is necessary for there to be a Business Associate Agreement in place between the attorney and the client before any records can be released to the attorney.  Covered entities include health care providers, health care clearinghouses, and health insurance plans (but not workers’ compensation insurance carriers).  Once the Business Associate Agreement is in place, the attorney must then have the expert witness enter into a written agreement where he agrees to be bound by all the restrictions of the attorney-client Business Associate Agreement.

An interesting development from another jurisdiction.

On October 8, 2009 a New York appeals court agreed with the New York State Workers' Compensation Board that a data entry employee should have her workers’ compensation claim considered with an inference that her joint pain be considered work-related.  

This is an update to a story from a few months ago in which we noted that the Philadelphia Bar Association issued an advisory that stated that it is unethical to gain access to a witness’ social networking web site by using a "friend" not affiliated with the litigation.

In an ongoing Worker’s Compensation case in Virginia, a defense attorney subpoenaed Facebook in order to gain access to the plaintiff’s personal page. These personal pages contain pictures, video, and text updates from their users. Facebook declined to respond, arguing that the Federal Electronics Communications Privacy Act prohibited it from responding to the subpoena. Subsequently, a $200 a day fine was levied against the company for failing to respond to a subpoena. However, upon reviewing the case, the Chief Deputy Commissioner of the Virginia Workers' Compensation Commission agreed with Facebook’s position and vacated the $200-per-day fine.

My two cents: Our first post about this topic dealt with attempting to gain access to plaintiff’s social network information via concealment. This new case indicates that a plaintiff’s social network information might be privileged even in the face of a court order. Although this issue has not yet been addressed in Alabama, I would expect a similar result.

In a March advisory opinion, the Philadelphia Bar Association stated that it is unethical to gain access to a witness’ social networking web site by using a "friend" not affiliated with the litigation. Since Facebook and MySpace require an invitation and/or permission before access is granted, they are different from other types of sites that provide unhindered access to the general public. By not telling the witness the real reason that access is requested, it is concealment and thus unethical.

My Two Cents: Although this issue has not yet been addressed in Alabama, I would expect the same result. Even without a formal ethics opinion in place, a trial judge would likely frown on an attorney or his clients gaining access to this type of information by concealment.