New Alaska Supreme Court Ruling Regarding Ex Parte
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New ruling in Alaska restricts disclosure of patient information related to litigation.
For decades, Alaska has allowed informal methods of “discovery” (sharing of information) during litigation, including private discussions between defense attorneys and the plaintiff’s treating physicians. These “ex parte” communications were encouraged by the Alaska Supreme Court, as they facilitated early evaluation and settlement of cases, with a resulting decrease in litigation costs.
However, a new ruling by the Court on June 22, 2018, determined that a cultural shift in views on medical privacy warranted overruling this practice. In Harrold-Jones vs. Drury, et al., the Court held that “absent a voluntary agreement, a defendant may not make ex parte contact with a plaintiff’s treating physicians without a court order.” As a result of this ruling, patients and their attorneys now have more control over how and when their information is released.
What does this mean for you?
Essentially, the most significant impact of this ruling is that defense attorneys can no longer speak with and obtain information from plaintiffs’ treating physicians about their medical care without formal authorization to do so, provided either by the patient or by the court.
Importantly, this change does not affect how you should respond to many routine requests for patient information outside of litigation. For example, requests for information for the purposes of treatment, payment, or operations of medical treatment (“TPO”), are allowed without the need for patient authorization.
Generally, with the above exception, physicians should not discuss patient care with anyone without: 1) the patient’s authorization to do so, or 2) a court order. If you are contacted by an attorney who wishes to discuss a patient’s care, you should first obtain a signed authorization from the patient specifically authorizing discussion with the requesting attorney before proceeding.
Authorizations
Patients who allow their physician to discuss their care with an attorney should execute a written, signed authorization. This authorization will typically be provided by the attorney’s office. Physicians should check the authorization for language indicating whether or not the patient has authorized health care providers to discuss their care and treatment with a representative of the law firm, and the scope of the information that may be discussed.
The authorization must include “a description of the information to be used or disclosed identified in a specific and meaningful fashion.” In other words, the information disclosed can be limited to particular dates of treatment or types of treatment. The patient isn’t required to allow their entire medical history to be disclosed. Remember that release of specially-protected information, such as HIV test results, must be specifically authorized by the patient.
Importantly, patients’ attorneys may seek to revoke previously-signed authorizations in light of this new ruling, so please carefully review authorizations to ensure they are valid and current, and ensure that preexisting authorizations have not been revoked by the patient before responding to additional requests for protected health information.
Subpoenas and Court Orders
As in the past, physicians may disclose information in response to a party’s subpoena, discovery request, or other lawful process if they receive “satisfactory assurances” from the requesting party that the patient has been notified of the request and given the opportunity to object. Generally, if you receive a subpoena for records and you have not received any correspondence from the patient’s attorney objecting to the subpoena, you must comply by producing the requested records.
Court orders are generally final, and you must comply with the terms exactly as they are explained in the order to avoid civil fines and penalties from the court. Court orders will be formally served to you, either by mail or by process server.
If you receive any formal or informal request for a patient’s protected health information and are unsure of how to respond, please contact Claims Department at 800-227-4527 or at claims@miec.com.