Subject Matter: Tort
Please consider this an update on legislation permitting health care providers to gain access to the medical records of anyone filing a medical malpractice claim which was considered by the House Judiciary Committee this week. The bill, HB 2979, would supersede federal HIPAA laws and Tennessee case law regarding ex parte communications with health care providers and allow an attorney, representing a health care provider, to access a plaintiff’s medical history, including mental health and past drug or alcohol abuse treatments. Regaining access to health care providers will defense counsel to have the necessary clinical information to evaluate standard of care and causation instead of having to depose the providers who have been prepared by Plaintiffâ€™s counsel in advance. Below is additional information. Enjoy the weekend. ~Rebecca
HB 2979 by *Dennis. (*SB 2789 by *Kelsey.)
Malpractice – As introduced, permits health care providers to use a HIPPA release in potential medical malpractice claims to receive all medical records of the patient filing the claim from other health care providers; authorizes the attorney of the health care provider to receive mental health and drug and alcohol abuse treatment records; and allows the attorney to interview the patient’s health care providers to defend the claim. – Amends TCA Section 29-26-121.
Present law requires any person, or that person’s authorized agent, asserting a potential claim for medical malpractice to give written notice of the potential claim to each health care provider that will be a named defendant at least 60 days before the filing of a complaint based upon medical malpractice in any court of this state. The notice must include:
(1) The full name and date of birth of the patient whose treatment is at issue;
(2) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(3) The name and address of the attorney sending the notice, if applicable;
(4) A list of the name and address of all providers being sent a notice; and
(5) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.
This bill replaces (5) with a properly executed HIPAA-compliant medical authorization, without limitation as to health care providers or dates of health care services, that provides:
(1) The health care provider, receiving notice of the potential medical malpractice claim, may obtain complete medical records of the patient, whose health care services are at issue, from other health care providers on notice of the claim and any health care provider maintaining health care records of the patient; and
(2) The attorney, representing the health care provider, is authorized to receive protected information, including, but not limited to, mental health and drug and alcohol abuse treatment records, to aid in the evaluation and defense of the potential claim or any health care liability action involving the patient whose health care services are at issue. This authorization shall also include the attorney’s right to interview, outside the presence of the claimant or the claimant’s counsel, the patient’s treating health care providers.
Firm/Company: Adleman Law Firm PLLC
Document Date: February 23, 2020
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