How HIPAA Relates to Medical Malpractice

The Health Insurance Portability and Accessibility Act (HIPAA) does protect patients' rights to privacy, but as some have been dismayed to learn, it does not guarantee the right to legal action. In other words, a HIPAA violation in and of itself cannot be used as grounds for medical malpractice.

That said, there is a relationship between the 1996 legislation and medical malpractice law, and anyone pursuing a malpractice case should be aware of the protections they are afforded. Additionally, although HIPAA itself does not guarantee the right to pursue legal recourse for privacy violations, other state laws may be in effect that would allow a medical malpractice attorney to pursue damages.

What Does HIPAA Say About Privacy?

HIPAA guarantees your right to privacy regarding your medical records and any treatment you receive. Medical providers including physicians, nurses and facilities like hospitals and nursing homes may not release any personal information without the patient's prior knowledge and written authorization.

This act also requires that all medical facility staff members undergo training, further safeguarding patients by ensuring that anyone who comes in contact with medical records is aware of their legal obligation to keep any information learned from those records private.

A few exemptions to these privacy rules exist, primarily associated with uses that could benefit the patient or general public health. Victims of abuse, for example, may find their privacy waived so that relevant medical records can be shared with legal authorities.

The exemption most relevant to medical malpractice cases, though, allows for medical records to be divulged to the court and legal representatives involved in court cases, with the use of a subpoena. In these cases the patient is notified, but is not required to sign a waiver.

So Filing a Medical Malpractice Case Negates my Privacy?

Other statutes keep the opposing party in your medical malpractice case from divulging anything learned from your medical records, but if information in those records is deemed relevant to the case, then the defendant's attorney has a right to use that information in forming a defense.

Remember, though, that both sides receive legal privileges in this manner. Your medical malpractice attorney can subpoena records from the physician or facility you are suing, as well.

So How Can I Pursue a Privacy Violation?

Your first course of action is to report the violation the appropriate governing body in your area. HIPAA may not give you the right to sue, but it allows for fines and other punishments to be levied against the medical professional who violated your privacy.

In terms of getting personal restitution, you will need to contact a somekeyword, who will be familiar with the local laws, but in some states you may still be able to collect damages.

This happened in Indiana in 2011.

A doctor's office in the process of pursuing a debt owed by a patient was asked to fax the relevant account statements to the collection agency. When the office staff did so, they failed to redact privileged information, including the fact that the patient was HIV positive. When the collections case was later taken to court, the fact that the patient had HIV became part of the public record.

After contacting an attorney, the patient was able to sue under an Indiana state law, and was eventually awarded 2.5 million dollars.

While you cannot use HIPAA to pursue damages in a medical malpractice case, there may be other laws at play that will allow you to seek restitution. Contact a medical malpractice attorney to learn about such laws in your state.

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